Remember NBC’s The Office? I think some lawyers used to blog about it. Anyhow, one of my favorite episodes was “Costume Contest” where the Scranton employees threw a Halloween party at the branch office. The costumes in the episode were mostly tame, ranging from Justin Bieber (Ryan) to Lady Gaga (Gabe). Late in the episode Angela dressed up as “sexy nurse.” The employment lawyer in me was not amused. 
Halloween is a few days away, and many employers will be holding costume-themed events. Unless HR steps in with some firm rules about costumes and conduct, some of those parties will invariably end up as reported Title VII cases. Consider just a few examples:
- In a 2009 New York case, the plaintiff, dressed as a punk schoolgirl, was asked by her supervisor whether her fishnet stockings were waist-high or thigh-high;
- In a 2009 Massachusetts case, photographic evidence of the provocative costumes the plaintiff wore to Halloween parties was offered by the defense in her sexual harassment case;
- In a 2006 Louisiana case, the plaintiff dressed like a cat, prompting her manager to comment that he wanted “that p***y”;
- In a 1995 Eighth Circuit decision, a white officer came to the party dressed in blackface, wearing overalls and a black curly wig, and carrying a watermelon.
Don’t let this be your workplace. Take steps before the party to diminish the risk of liability. Prohibit or limit alcohol. Do not allow provocative costumes. If the party takes place at the workplace, have it end at a reasonable hour. Remind employees about the company’s harassment and discrimination policies. Nothing is scarier than being sworn in for your deposition. Happy Halloween, everyone.
