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Allowing Halloween Costumes at Work Can Be Tricky
 

By Kathy Gurchiek  10/22/2009
 
 

Halloween can be scary for employers, and not because of the likelihood employees will be on a sugar high from the bags of chocolate bars, cupcakes and assorted candy strewn about the workplace.

Allowing costumes at work can be tricky, according to a national labor and employment law attorney, who says employers could be held liable for problems resulting from Halloween garb that is sexually provocative, carries a political or social message or is just plain inappropriate for workers interacting with colleagues and clients.

“Even though Halloween can be innocuous, there is the risk of litigation depending on what kind of costumes someone wears to work,” such as a French maid, naughty nurse or revealing Elvira costume, says Steve Miller, of counsel with Chicago-based Fisher & Phillips, a national labor and employment law firm.

“What you wear to the bar and what you wear out on Halloween night is not always or necessarily appropriate for the workplace,” Miller observed. And there is the potential for a harassment claim if comments are made in the workplace that originated because of a costume choice.

“It is just a costume and it is meant to be fun … but at the same point in time, if a group of employees or even one employee [is] picking on [an employee]” because of the costume choice, that can form the basis of a harassment claim, Miller said. The situation worsens if the manager joins in on the teasing, he added.

And it’s not just revealing costumes that can cause heartburn for employers.

A worker sashaying into work in one of the “Illegal Alien” costumes, for example, could be seen as creating a hostile work environment and lead to a litigation nightmare, he told SHRM Online.

That particular costume, which includes an orange jumpsuit such as those worn by prisoners, with “Illegal Alien” stamped across the chest; a space alien mask and a fake oversized green card, has prompted an outcry among activists that represent legal immigrants and caused one retailer to pull the costume from its offerings, according to CNN.com and other news outlets. A similar costume includes the mask with green eyes, dark handlebar mustache and baseball cap.

Even if an organization’s employees are legal immigrants, “they can still be offended … and that can form the basis of their claim” against an employer, Miller said.

Scandals in the current headlines are other likely sources of inappropriate workplace costumes, according to Shanti Atkins, Esq., a former employment lawyer at Littler Mendelson. She is president and CEO of ELT, which specializes in ethics and compliance training.

Atkins predicts many men will dress as David Letterman, talk jokingly about workplace sex and may even pretend to hit on female co-workers to re-enact the scandal—a potential sexual harassment concern, she warns in a news statement.

Michael Jackson, who died in June 2009, is a popular costume subject, a Google search of 2009 Halloween trends shows. Atkins cautions that engaging in inappropriate impersonations in such a costume—as on a recent Australian TV show with Jackson 5 impersonators appearing in blackface—could fuel workplace tensions and discrimination claims.

Tips for Employers

Miller’s office recommends employers planning a Halloween celebration to:

Communicate costume guidelines clearly in advance. “Remind them they’re still at work, they still have to act professionally,” Miller advised employers. “You also have to keep in mind the potential of offending customers” if they interact with the public.

“It really depends on the company’s culture. Employers allow Halloween parties,” for example, “to help build camaraderie, build teamwork, alleviate workplace stress” and provide an outlet for creativity and a break from routine, he said. “Quite frankly, I’ve seen attorneys walk to court dressed as Willy Wonka. … It all depends on that employer’s particular culture and whether or not they want to allow” costumes and/or Halloween parties.

Guidelines should include examples of inappropriate costumes and costumes that pose potential safety hazards, such as for employees working in kitchens and around machinery, he noted.

Don’t overreact, but be sensitive. Political masks, for example, can be a minefield and widely misinterpreted.

“If it’s just a Halloween mask and you’re wearing a suit, chances are that’s not going to offend anyone,” Miller said. “But if you come into work and you’re wearing a political mask and you’re doing like a comedy routine, you’re doing satire about that individual, you could cross some lines depending on what’s said.”

Adding accessories and adopting mannerisms “could easily create some issues and polarize the employees in the workplace,” he added, and this heightens the risk of workplace conflicts.

Be sensitive to subtleties. Some might take offense to costumes that years ago did not raise eyebrows.

Dressing as a vending machine—wearing all black with snacks fastened to one’s body that the wearer throws to the floor when someone makes a selection, as suggested in a 2005 column that SHRM Online found in researching this story—is timeless office humor.

However, a suggestion four years ago to wear a “pink slip” over clothing and chase co-workers around might not be funny given the current unemployment rate.

Also, costumes depicting other cultures or religions—dressing as a Native American or as a priest or nun, for example—could be considered disrespectful and cause offense.

Reflect on last Halloween and the feedback the company received from employees or customers. If most workers did not participate, this practice might not fit with the company culture.

Consider alternative ways to celebrate, such as a company potluck or luncheon. One popular practice among some employers is allowing children of employees to trick-or-treat in the workplace, Miller said.

If children are allowed on the premises for Halloween and employees will be in costume, remind employees to “be mindful, be respectful” in their costume choices, Miller said.

Be prepared to discipline, if necessary. Guidelines issued to employees should alert them that infractions could result in discipline. Issuing discipline on the spot is going to be on a case-by-case basis depending on the costume and kinds of comments it prompts, he said. An employee in a revealing costume might be able to remedy the situation by throwing on a wrap, for example.

Also, discipline should be applied consistently, Miller pointed out.

“If an employer is going to discipline an employee for sexual harassment, whether it’s on Halloween or any other day, follow the policy. Just because it’s Halloween doesn’t mean the sexual harassment policy isn’t to be followed,” Miller said.

Supervisors need to model behavior.

“Immediate supervisors are going to be the front line of enforcing [the company] policy,” Miller said. “They’re going to be responsible for setting an example, acting professional, doing their job, not making inappropriate comments about somebody’s costume” and keeping costume-related problems from escalating or continuing.

Supervisors toying with the idea of donning an Illegal Alien costume for work might want to rethink their costume choice.

Related Article:

Halloween Parties: A Tricky Treat, HR Magazine, October 2000

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