Trick or treat: Office Halloween parties may bring legal trouble

If your company is going to bravely wade into the spooky legal minefield of a Halloween Party, the first place to start is a dress code.

For many adults, Halloween has come to be identified with risqué costumes, pranks, and overall debauchery.  Although many companies are tempted to lighten up and allow employees to celebrate Halloween at work, it is important to set boundaries.  For example, should employees be allowed to wear a “Sexy Nurse” or “Donald Trump” costume to an office Halloween party? How about employees who believe that Halloween is offensive and celebrating it is a violation of their religious beliefs?  Should the office Halloween Party be renamed the Fall Festival, just like many Christmas parties are now re-branded as “Holiday Parties?” These are questions that can cause HR Managers to throw up their arms and avoid holidays altogether.

If your company is going to bravely wade into the spooky legal minefield of a Halloween Party, the first place to start is a dress code.  A brief “Google” search of costumes leads to the conclusion that just about any safe for work costume can be made inappropriate by simply adding “Sexy” to the title.  Office Halloween parties are no place for “sexy” outfits, political statements or costumes that might be offensive based on a protected class such as race or gender. Simply, companies should have a dress code for Halloween for the same reasons most have a dress code for regular office attire – without rules, some employees will not know where to draw the line on good taste and offensive attire.

That said, dress codes don’t have to be demoralizing and preachy. Here are some ideas for a Halloween dress code:

  1. Encourage employees to be fun and creative, but leave the revealing costumes for outside the workplace.
  2. Provide basic guidelines on what types of costumes may be considered inappropriate, including political ones (i.e. Donald Trump and Hillary Clinton) or costumes with excessive blood and gore.
  3. Consider a themed Halloween party which will allow employees input and an opportunity to focus employees towards more appropriate ideas for costumes.
  4. Even better, encourage departments to come up with their own theme and coordinating costumes (which will encourage teamwork and a “review” of costume ideas beforehand).
  5. Identify a responsible member of management (probably Human Resources) to handle any disputes or complaints over inappropriate costumes.

Even the most politically correct Halloween celebration, however, may still find those employees who in the office who are offended.  For example, some religious employees may object to the celebration of Halloween altogether and refuse to participate. Generally, the law requires employers to reasonably accommodate employee religious beliefs, and excusing an employee from dressing up or participating at all in a Halloween party seems like a reasonable step.  Moreover, like any other request for religious accommodation, it would be unlawful for an employer to retaliate either directly, or indirectly by allowing coworker teasing or peer pressure. To avoid these conflicts, consider making attendance at office Halloween parties (or costumes) optional.

Lastly, Halloween is a time when some individuals may decide to test the boundaries of appropriate behavior in the workplace.  Pranks can be harmless, but not every employee thinks it is funny to be scared or tricked into eating candy that turns their teeth black.  The anti-harassment policy should not be thrown out the window for holidays, and employees should be reminded that, above all, coworkers should be treated with respect and left alone if they do not want to join in any Halloween activities.

In the wake of the #MeToo era and Kavanaugh hearings, it pays to be proactive when it comes to issues like sexual harassment in the workplace.  Although employers may be tempted to do away with Halloween parties in fear of harassment lawsuits or complaints about offensive costumes, following these practical tips can allow employees to have a little fun without the legal risk.

After all, a little fun and camaraderie in the workplace is an important retention tool and, in the long run, may actually reduce the risk of employment litigation.

David Barron is a labor and employment attorney at Cozen O’Connor.