Halloween conjures images of trick-or-treaters, toilet-papered houses and stomachaches from partaking too liberally of the leftover candy you intended to take into the office. For employers, a specter that often rises from the remains of the annual Halloween party is the allegation of workplace misconduct. Inappropriate conduct can arise anytime of the year, but Halloween tends to bring out a special breed of poor judgment and boorish (or worse) behavior. Following are some examples of the traps that can ensnare the unwary employer, along with tips on how to avoid the labyrinth of litigation.

Sexual Harassment. Many Halloween-related lawsuits arise from inappropriate comments about employees' costumes, such as the supervisor who commented suggestively about the "tail" on a female employee's cat costume[1] or the manager who pointed to his groin and told a female employee dressed as a doctor, "It hurts here."[2] Comments such as these are often made in response to particularly risqué costumes. Provocative costumes, however, are not an invitation to harass. As always, managers should respond promptly to all allegations of harassment and take appropriate action to remedy the situation and prevent future harassment or retaliation. Employers permitting costumes at work or work-related functions can and should establish appropriate costume guidelines and may discipline employees whose attire is inappropriate. Only in rare cases might inappropriate attire be used as a defense to a harassment claim. See, e.g., Dahms v. Cognex Corp., 455 Mass. 190, 200 (2009) (photos of plaintiff wearing "see-through Empire State Building" costume admissible at trial as evidence that plaintiff was not subjectively offended by the workplace environment).

Other Forms of Discrimination. Costumes also figure prominently in other harassment and discrimination claims. For example, the U.S. Court of Appeals for the Eighth Circuit upheld discipline against a white police officer who offended his co-workers by attending a Halloween party dressed in blackface, wearing a black curly wig and carrying a watermelon.[3] Similarly, the Sixth Circuit held that a co-worker's comment in the days following the September 11, 2001, terrorist attacks to a Pakistani employee that he should dress as Osama bin Laden for Halloween constituted evidence of a hostile work environment on the basis of national origin.[4] And the 11th Circuit recently affirmed judgment in favor of a transgender female employee who wore a dress to the office on Halloween while she was transitioning from male to female, leading a manager to fire her after telling her that her "costume" was "unnatural."[5]

Religious Accommodations. Today's celebration of Halloween is far removed from its historical roots as a religious holiday. So many employers are often unprepared for Halloween-related requests for religious accommodations. Under federal and Massachusetts law, employers are required to reasonably accommodate an employee whose sincerely held religious belief, practice or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. Thus, an employer might need to accommodate an employee's request for time off on October 31 to attend the Samhain Sabbat, the New Year's observance for practitioners of Wicca.[6] Or it may need to permit a practicing Jehovah's Witness to abstain from attending mandatory company-sponsored Halloween events due to the employee's sincerely held religious belief preventing her from attending holiday celebrations.[7] Employers need not accommodate "personal preferences" that do not constitute religious beliefs, but an employer should challenge an employee's belief only if there is an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice.

Safety Issues. Halloween can also create some unique workplace hazards, some more predictable than others. For example, the safety concerns of permitting employees to wear costumes near dangerous machinery are readily apparent. Less foreseeable might be the unpredictable conduct of some employees, such as the off-duty police officer at a Halloween party who accidentally set off a hand grenade that was part of his costume.[8] Employers generally will be held liable for all injuries sustained by their employees that arise out of and in the course of the worker's employment. An Arkansas employer learned that lesson the hard way when it was held responsible for workers' compensation benefits to an injured employee who fell off a stool after being scared by a co-worker wearing a Halloween mask.[9] Whatever festivities might be planned, managers need to ensure company-related Halloween celebrations do not put employees at increased risk of harm.

Tips for Employers. Employers often walk a fine line between encouraging activities that build camaraderie and teamwork and ensuring appropriate workplace behavior. Halloween is no exception, and the best practices that (should) govern throughout the year continue to apply:

  • Establish and communicate clear guidelines on appropriate workplace conduct;
  • Ensure managers understand the company's nondiscrimination and harassment policies and model appropriate behavior; and
  • Apply company policies consistently and fairly, and deal with inappropriate behavior swiftly and effectively.

Keeping these principles in mind will help you avoid some of the scariest Halloween horror stories