Halloween Tips for Employers: How to Avoid the Scary Consequences of Halloween Costumes

Quick Hits

• Summer is gone and the holiday season is upon us. With Halloween coming up soon, employers may want to take steps proactively to avoid situations that could lead to reputational damage or legal disputes over Halloween activities, costumes, and decorations.
• Employers might remind workers of workplace policies and expectations before Halloween to avoid negative consequences arising from Halloween festivities and inappropriate behavior.

While employees are often quick to claim the free speech protections in the U.S. Constitution, the First Amendment prohibits the government from enacting laws that inhibit free speech. It does not prohibit private employers from regulating speech and conduct in the workplace, particularly if an employee’s conduct could implicate concerns of discrimination or harassment of others. As the adage goes, freedom of speech does not mean freedom from consequences, especially within the private sector.

Generally, if a workplace policy is narrowly tailored for a specific business purpose, employers can enforce policies that govern employee conduct at work, including regulation of claimed “free speech.” For example, an employer can ask an employee to remove a costume that is perceived as racially insensitive, harassing, or overly sexual.

Generally, employers have broad discretion to create guidelines that promote a safe, respectful, and productive workplace. Halloween celebrations should not be viewed as providing employees an exemption from normal workplace policies that are intended to prevent negative consequences flowing from employees’ inappropriate behavior, such as displays of offensive messages related to politics, religion, social justice causes, or memorable events from the previous year. Depending on the employer’s response to a worker’s misconduct, the employer could end up facing a lawsuit claiming discrimination, harassment, or a hostile work environment.

Many employers have policies that address a scenario in which an employee wears an inappropriate costume or engages in questionable conduct while celebrating Halloween. For instance, typical workplace policies may:

• prohibit harassment, discrimination, and bullying in the workplace;
• prohibit conduct or clothing that creates a health or safety risk to others;
• prohibit clothing that is offensive, inflammatory, or contrary to the employer’s business model;
• prohibit conflicts of interest that could negatively impact the employer’s reputation;
• prohibit photos and videos to protect confidentiality in the workplace;
• prohibit recordings of workplace activities and conversations; and
• provide general guidelines for social media use.

Similarly, an employer’s code of conduct may provide specific examples of behavior and attire that is not tolerated in the workplace.

By addressing what is (and is not) appropriate in advance, employers may avoid some of the unintended consequences of an employee’s poor costume choices and inappropriate behavior at Halloween activities. For example, costumes related to mass shootings, natural disasters, and pandemics could be perceived as lacking empathy, in bad taste, and stoking division in the workforce. The same is true for costumes using blackface or making light of mental illness, eating disorders, sexual harassment, slavery, religious persecution, or stereotypes. Likewise, sexy and provocative costumes that violate the employer’s dress code and invoke sexual innuendos are not appropriate for the workplace, may not align with the employer’s image, and could provoke a sexual harassment lawsuit.

Inappropriate costumes may hurt workforce morale and productivity. Moreover, offensive Halloween costumes and decorations could be viewed as creating hostility and division in the workplace.

Halloween provides an opportunity for employers to remind employees of the vast and enduring reach of the internet. Photos and videos that may be intended as private can quickly go viral on social media sites. An employee’s offensive or inflammatory costume could damage an employer’s brand and negatively impact its reputation and goodwill with the public. As such, employers may want to avoid the appearance of endorsing distasteful or ill-advised costumes. If the employee’s conduct is connected back to the employer, the employee may face discipline or dismissal, even if the conduct occurred outside of work.

Additionally, applying all policies in a uniform and consistent manner means the policies are uniformly applied to all employees and consistently applied throughout the year (even at Halloween). Employers that allow policy deviations at Halloween (or for other special occasions) may unintentionally create precedent for future deviations from the same policy.

Finally, some employees do not celebrate Halloween due to their religious beliefs, and supervisors may need to address religious objections to Halloween-related activities. Employers that plan to host a Halloween party or invite workers to Halloween events hosted by clients or customers may want to make it clear that participation is voluntary. If optional activities occur during work hours, employers may want to consider whether the activities are accessible to everyone, including employees who are pregnant or have disabilities or medical conditions that would limit their ability to participate.

Next Steps

Prior to Halloween, employers may wish to consider sending these reminders to employees and supervisors:

• Company policies continue to apply during all Halloween activities. Costumes, games, and decorations should adhere to safety rules and corporate policies that prohibit discrimination and harassment in the workplace and require professional, ethical conduct. Employers may also want to remind employees that costumes should adhere to the company’s dress code, and provide specific examples of unacceptable attire.
• Policies requiring professional, ethical behavior may apply to onsite events, off-site events, and interactions with customers and clients.
• Employees could be disciplined or fired for conduct that damages the organization’s public reputation or violates rules outlined in the employee handbook.
• Consider these seven questions before disciplining a worker for social media posts.
• The dress code and other corporate policies are applied consistently to everyone to avoid claims of discrimination or retaliation.
• Complaints should be reported through proper channels, such as contacting a supervisor, contacting HR, or using an anonymous hotline.

With some foresight, Halloween won’t go down as a horror story in corporate history.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employee Engagement and Employment Law blogs as new information becomes available.

Stesha A. Emmanuel is a shareholder in Ogletree Deakins’ Boston office.

Melissa M. Pesce is a shareholder in Ogletree Deakins’ St. Louis office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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