Written by Cayleigh Shiff, Lawyer, SHARP Workplaces Legal Advice Clinic

With loosening restrictions for restaurants and social gatherings, some workplaces are bringing back the in-person holiday party. Many of us are thrilled to be back in a room full of coworkers, sharing laughs and complaining about the bland buffet. Yet for many people, this year’s holiday parties won’t be so lighthearted. They will come with unwanted invitations, crude jokes, and sexual assault. These behaviours are sexual harassment. It’s your employer’s responsibility to provide a harassment-free work environment, including at work-related social gatherings.

Holiday parties can be a breeding ground for unwanted sexual behaviour. There are many features of a typical holiday party that can increase the risk of workplace sexual harassment. In many ways, holiday parties are meant to blur the lines between our private and professional lives, allowing coworkers to get to know other parts of each other they might not encounter during the workday. Alcohol, evening wear, a different physical space, plus-ones, and music, can all create the illusion that you aren’t really “at work” and that your coworkers are social acquaintances. This “blurring” is exactly what can make some people feel that they can get away with inappropriate conduct they might not otherwise bring to a professional setting. Even if you’re wearing a cocktail dress and holding a beer, you still have a right to be free from workplace sexual harassment.

What is Workplace Sexual Harassment?

Workplace sexual harassment is any behaviour connected to work that is:

  • unwelcome — it’s unwelcome if the average person would expect it to be unwelcome or if there are negative work-related consequences. You do not have to actively object or tell your harasser their behaviour is unwelcome);
  • of a sexual nature — this means it involves a person’s sex, gender, gender identity or expression, or sexual orientation; and
  • leads to negative job-related consequences — this can include consequences ranging from no longer feeling comfortable or safe in your work environment, being fired or having your hours reduced.[1]

The range of behavior that could be sexual harassment is broad and includes:

  • sexual comments, teasing, jokes, or compliments about appearance or dress;
  • sexual gestures, staring, leering;
  • showing pornographic or sexually suggestive material in person or through e-mail, chat, text messages, video-conferencing;
  • repeated, unwanted invitations;
  • physical contact, such as touching or hugging;
  • sexual assault;
  • comments about a person’s gender identity or expression;
  • behaviour a person feels they must accept to get hired, keep their job, or get a promotion; and
  • microaggressions, which can be verbal or nonverbal, intentional or unintentional negative messages targeting someone based on their membership to a marginalized group.

Where can Workplace Sexual Harassment Happen?

It’s your employer’s responsibility to provide a safe work environment, even when that work environment moves from the usual workspace to a hotel ballroom, restaurant, or even your living room while working from home.

It could be workplace sexual harassment if it occurs:

  • at work or somewhere you are required to be for work;
  • on a social outing with coworkers;
  • at a conference, training, or professional development event;
  • at lunch or on a coffee break outside the usual work space;
  • on social media or in text messages; or
  • working from home (video conferences, email, messaging).

A significant amount of workplace sexual harassment happens outside the formal work space (20% in 2019).  Two out of 3 women who experienced workplace sexual harassment away from the work space said it happened at a work-related social event, conference, or training. These numbers are extremely high for how little time most of us spend with our coworkers outside work. Workplace sexual harassment must be taken just as seriously whether it happens in the physical workplace or somewhere else.

Examples of Holiday Party Workplace Sexual Harassment

Neta — Attention from a coworker’s party guest

Neta is a medical records clerk at a hospital where she’s been working throughout COVID-19. Neta attends the hospital’s holiday party at a hotel, where she meets a lot of new people at the party, including both coworkers and their spouses.

Dr. Cabrera’s husband, Greg, spends a lot of time talking to Neta while his wife is mingling with other doctors. Greg complains to Neta that his wife is too busy for him and tells Neta he wishes he was married to someone with a less demanding work schedule like hers. Neta finds this gossip interesting and asks Greg questions and lets him continue talking about his relationship. Greg then asks Neta about her romantic situation. He tells her he can’t believe someone as beautiful as her is single and that if he weren’t married, he would want to be with someone like her. Neta leaves to join some friends on the dance floor.

Throughout the rest of the night, she notices Greg standing near the dance floor staring at her. He winks at her a couple of times and Neta ignores him. Neta later runs into Greg on her way to the bathroom. Greg tells Neta that he just booked a room in the hotel and asks Neta to join him. Neta tells him she’s not interested and leaves to join some coworkers at a local bar. Over the following few weeks, she notices Dr. Cabrera seems colder than usual and Neta is worried Dr. Cabrera knows what happened.

Was that sexual harassment?

What happened to Neta at her holiday party is workplace sexual harassment. It can be workplace sexual harassment, even if it comes from someone other than a coworker.

Amrit — Touching by co-worker

Amrit is a nurse at the same hospital as Neta. After the hospital’s holiday party, Amrit and some coworkers go to a local bar for drinks and dancing. Amrit and her coworkers have all had a lot to drink at this point in the night, and Amrit is feeling quite drunk. While Amrit and her coworkers are dancing, Jesse grabs Amrit by the waist to start dancing closely with her. Amrit doesn’t know Jesse very well and didn’t expect Jesse to touch her waist and start dancing closely. Amrit moves away from Jesse, but Jesse continues to try to dance with her throughout the rest of the night. Amrit feels like she is making it obvious she doesn’t want to dance with Jesse, but Jesse only makes the dancing more sexual and starts “grinding” up on Jesse from behind. Amrit knows Jesse is intoxicated and doesn’t think Jesse would do the same thing sober.

Amrit feels more comfortable dancing with other coworkers. Neta, for instance, is a close friend of Amrit since they were nursing students, and Neta was a bridesmaid Amrit’s wedding. While they’re dancing, Neta frequently grabs Amrit by the hand to spin her around and playfully throws her arm around Amrit for pictures. Amrit is very comfortable with this behaviour because she and Neta have a longstanding friendship that exists outside work, and she has never felt that Neta touching her was sexual or unwanted in anyway.

Was that sexual harassment?

What Jesse did to Amrit is sexual assault and workplace sexual harassment. Sexual assault is any sexual touching without a person’s consent and is a criminal offence. Consent is a voluntary agreement to participate in sexual activity. In this case, Amrit did not consent to Jesse touching her or dancing in a sexual manner with her. Sexual assault can also be workplace sexual harassment if it happens at work or an event connected to work, such as a holiday party. The fact that Jesse was intoxicated is not a defence to sexual assault.

In contrast, Neta’s behaviour towards Amrit was probably not workplace sexual harassment. Based on the information we have, Amrit was comfortable with and welcomed the type of dancing she and Neta participated in, and there is no indication that it will cause work-related consequences.

Even after coworkers have developed friendships outside work, their behaviours can still be workplace sexual harassment. For instance, if Neta’s behaviour had become sexual or if there was a reason to believe Amrit no longer welcomed that type of behaviour, then Neta’s behaviour could be workplace sexual harassment.

Bella — Employer fails to investigate toxic environment

Unlike Neta and Amrit, Bella hasn’t met many of her coworkers yet. She started working at her company during COVID-19 and has been working from home. Her company is holding an office party at a nearby restaurant and she’s excited for the chance to get to know her coworkers. During the party, her supervisor tells her she is “way more beautiful in person than on Zoom” while looking her up and down. She immediately feels uncomfortable and doesn’t say anything. Later, Bella is talking to a group of coworkers, including some managers, when someone starts telling a vulgar sexual joke that Bella is uncomfortable with. When she doesn’t laugh at the joke, the group teases her about being a prude.

Since the party, Bella is withdrawn at work. She no longer wants to make an effort to build relationships with her coworkers and she notices she isn’t being included on important projects. During her performance review, her supervisor tells her she isn’t a “team player.” She has been diagnosed with depression and doesn’t feel like she can continue working there.

Was that sexual harassment?

What happened at the holiday party is workplace sexual harassment. Her employer did not provide a safe work environment. Employers have an obligation to investigate when they learn that workplace sexual harassment might have occurred, even when there is no formal complaint. Bella’s managers either participated in, or at least witnessed, the sexual harassment and failed to take any steps to address it.

We’re here for a good time, not sexual harassment

Holiday parties should be fun. They are an opportunity to celebrate a year of hard work and facilitate team bonding — but no one is having fun if they are being sexually harassed. Holiday party-goers should keep in mind the difference between appropriate social behaviour and workplace sexual harassment and avoid creating a sexualized work environment. If an incident occurred at a work-related holiday party, it’s still workplace sexual harassment. All employers must take steps to prevent and address sexual harassment, even at social events. Everyone has a right to a safe, harassment-free workplace, which includes work-related events such as holiday parties and other social gatherings.

Where to get help

If you are experiencing workplace sexual harassment, or if you are unsure whether what you are experiencing is workplace sexual harassment, you can access the SHARP Workplaces Legal Clinic for free legal advice by calling: 604-673-3143 or toll-free: 1-888-685-6222, emailing SHARPWorkplaces@clasbc.net or by going to clasbc.net/SHARPWorkplaces.

[1] Janzen v. Platy Enterprises, [1989] 1 SCR 1252, 59 DLR (4th) 352.

Photo by Antenna on Unsplash

NOTICE: SHARP Workplaces Legal Advice Clinic ceased providing legal services in March 2024 due to an end of funding, and is NOW CLOSED. 

If you experienced sexual assault and need legal advice  contact Stand Informed legal advice services.