Opinion: Office holiday parties return, bringing sexual harassment risk

With the holiday season upon us, so too is the first big wave of in-person corporate holiday parties since COVID began. Remote and hybrid employees, many of whom have had little in-person experience with their companies, will be meeting for the first time or rekindling relationships with their colleagues and supervisors.

These parties can be a great opportunity to build relationships with coworkers outside the day-to-day grind. Unfortunately, in-person office gatherings — especially those involving alcohol — can also dangerously blur the lines between workplace and leisure and create an environment in which inappropriate jokes, unwanted touching or worse can be commonplace.

It is important to note that in these circumstances employees remain protected under federal and state protections prohibiting discrimination and harassment in the workplace. Six years after the #MeToo movement began, there remains a lot of work to be done to make the workplace (which includes offsite events) safe from sexual harassment.

In 2017, the #MeToo movement swelled as a cascade of survivors of sexual assault and harassment came forward in Hollywood and across industries in the United States. The headline-gripping cases of those early days demonstrated clearly that workplace sexual harassment and assault is not confined to the physical walls of an office.

In the wake of that movement, California politicians passed a range of legal protections and opened new avenues for accountability. Those laws have borne some fruit — in recent weeks alone, three major music executives were accused of sexual assault by women in the industry under the Adult Survivor’s Act. Perhaps the most prominent lawsuit brought forth under a similar law in New York came from writer E. Jean Carroll who, in 2022, accused former President Donald Trump of sexual abuse and won.

In California, the law’s victim lookback window, which opened in January and runs until 2026, allows alleged victims of sexual offenses for which the statute of limitations has lapsed to file civil suits for a limited period. Though not designed to target workplace sexual violence specifically, the Adult Survivor’s Act has granted more power to survivors by enabling them to seek accountability for their abusers. It remains to be seen how cases brought under this law will shape employer policies around sexual harassment, as liability risk increases.

California’s workplace discrimination policies and protections are arguably the strongest in the nation. In addition, in 2022, President Biden signed into law a federal bill that ended forced arbitration for sexual harassment and sexual assault claims. Combined, these laws create important protections that can enable survivors to come forward and get justice after the fact, but the onus of prevention — creating safe work environments in the first place — lies with employers.

It’s not enough to tell employees to keep their guard up: employers have a responsibility to set company culture, standards and policies that prevent and correct harassing conduct. Through strong anti-harassment policies that are aggressively enforced in and outside of the office, rigorous training for employees and greater gender diversity in leadership, companies can make events like holiday parties safer for everyone.

Survivors are unlikely to come forward if they fear retaliation or that they won’t be supported. They are even less likely to speak up if they have seen other perpetrators go unpunished.

As an employment attorney, I see too often how harmful retaliation or ineffective remedial measures can be when an employee chooses to speak up. Not only does this conduct harm that specific employee, but it also serves as a deterrent to all employees to raise issues of harassment and discrimination in the workplace.

Systemic problems demand systemic solutions. While California has made good progress on this front, every employer should be bolstering their policies year-round to protect their workers from unsafe behavior. It’s a festive time, but as workplaces across California unwind and ring in the holiday season, let’s celebrate safely.

Attorney Menaka Fernando is a partner at Outten & Golden’s San Francisco office focusing on gender-based issues in the workplace.