HR Compliance

Can Sexual Harassment Occur After-Hours?

By

Matthew Paque

| Jul 24, 2018

If sexual harassment occurs during happy hour, are you still liable as an employer? After all, employees are off-site and on their own time. And you’re not making their drinks!

While happy hour – or any after-hours interaction, for that matter – may not look like a work environment, courts may view it as an extension of the work environment. And when that’s the case, employers could be held liable for the poor behavior of their employees at such events.

Overview of the law

 Federal regulations define harassment on the basis of sex as:

  • unwelcome sexual advances,
  • requests for sexual favors or
  • other verbal or physical conduct of sexual nature

When this conduct unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive working environment, the law does not typically limit the place and time where the harassment can occur. In fact, courts have looked at activities outside of the typical office environment to support findings of sexual harassment against employers. If the harassing activity can be shown to be related to the employment relationship, even if it took place beyond the workplace and normal work hours, it could be grounds for a sexual harassment claim.

Courts may look at the record as a whole, including the totality of the circumstances, when determining the validity of a sexual harassment claim. That includes both the nature of the sexual advances and the context surrounding the alleged incidents.

Courts are mixed on whether or not off site events constitute an extension of the work environment so as an employer, you need to be aware of the possibility that it will be included.

There are two categories of sexual harassment that could arise out of at an offsite work event. The first is where the offensive conduct becomes a condition of employment (i.e., quid pro quo harassment). The second is conduct severe or pervasive enough to create a hostile work environment that a reasonable person would consider intimidating, hostile, or abusive.

Activities away from the normal workplace such as a happy hour can result in workers failing to observe proper boundaries. Employers should have policies and procedures in place to prevent sexual harassment in all job-related contexts, and they should be prepared for complaints that involve behavior outside the workplace.

Prevention

 Avoiding a costly after-hours, non-workplace harassment claim is just one reason training your employees matters – but it’s important in this situation. The Supreme Court has stated that employers may avoid strict liability arising out of a supervisor’s activities by showing that the employer took reasonable care to prevent and promptly correct any sexually harassing behavior, and that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

In addition to the Supreme Court’s support of training, there is ample support for training in the federal regulations. The regulations state the best tool to prevent sexual harassment is training. Additionally, an employer should do everything necessary to prevent it from occurring. Some examples include:

  • affirmatively raising the subject
  • expressing strong disapproval
  • developing appropriate sanctions
  • informing employees of their right to raise the issue

Training helps your employees know what isn’t acceptable and how they can make a report if necessary. It also protects your company. When an employer sensitizes its employees to sexual harassment, and clearly distances itself from any perceived support of the behavior, that will likely reduce any apparent authority a supervisor may have when acting inappropriately after hours.

Since the actions of employees at the office happy hour may affect the workplace and thus impact your liability as an employer, the subject of non-workplace harassment deserves attention in your sexual harassment policy. Couple that policy with robust, consistent trainings to ensure you’re doing your due diligence to protect your employees and your organization.

Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.

About the Author

Matthew Paque

Matthew A. Paque is Paycom’s Executive Vice President of Legal and Compliance. In this role, he is responsible for Paycom’s legal affairs including compliance and risk management. He has served in a variety of leadership and legal positions in both the private sector and in government. Before joining Paycom, Paque was an attorney at the law firm of McAfee & Taft and previously was Assistant General Counsel at Tronox a global mining and chemical company. He holds a J.D. from the University of Oklahoma and a B.A. from Oklahoma City University. Paque is also an adjunct professor at Oklahoma City University’s Meinders School of Business.

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