Halloween can end up being the night (or day) of the living dead for employers who fail to set guidelines for employee celebration of Halloween in the workplace. In particular, numerous discrimination and harassment lawsuits have arisen out of employees’ choice of Halloween attire. When it comes to costumes, it is essential to warn employees to stay away from inappropriately revealing costumes as well as those that can be construed as offensive based on age, sex, religion, national origin, race or other protected classifications. To avoid safety issues, it’s also a good idea to tell employees not to bring in threatening props (whether real or not) such as knives, guns or chainsaws. Ban masks that make it difficult to identify the employee wearing it. Employers who fail to communicate to employees the “don’ts” of workplace costumes may end up in court feeling like Halloween was the scariest day of the year.
A lack of judgment on the proper Halloween attire can also come back to haunt an employee. In a sexual harassment case, Dahms v. Cognex Corp., 455 Mass. 190 (2009), testimony about an employee’s transparent Empire State Building costume was deemed admissible to support the employer’s position that the employee was not subjectively offended by her work environment. Interestingly, the employee’s attorney brought up the issue at trial to support her case that her client’s work environment was sexually charged. The attorney then elicited testimony that the CEO had told her costumes were “hot” or “see through.” The employee’s attorney also introduced into evidence five photographs of her client at Halloween parties and then asked a company witness, “These are the costumes you complained were too provocative or seductive, right?” Not surprisingly, the jury returned a verdict for the employer.