Working for Justice

Happy Holidays: Invasive Invitations

Posted December 19th, 2014 by in Employment Discrimination.

With the holiday season fast approaching, employees everywhere are gathering for the bizarre ritual of the office holiday party.  Cue the obligatory ugly sweaters, sickeningly sweet punch, and alcoholic excess.  More than a few websites discuss the legal hazards of this latter:  Alcohol enables harmful behavior from sexual harassment to intoxicated driving.

But beyond these legal issues, I’ve been worrying about how even the best-intentioned holiday parties, built on inclusiveness and camaraderie, may nonetheless force employees to reveal information about themselves that they’d rather keep private. Some of this information may have legal implications. But these situations may just create discomfort that we’d all rather avoid.

Growing up, I was often the only Jewish kid in my class.  Sometimes, that meant coloring a menorah while other kids colored a Santa.  And one time, much to my mother’s chagrin, that meant her making latkes for the entire class (for the uninitiated, the latke is a traditional Chanukah food consisting of grated potato, onion, egg, and flour fried to a delicious golden brown and served with sour cream or apple sauce).  Judaism is a relatively main-stream religion these days, and I was never harassed or mistreated.  Nonetheless, this annual ritual singled me out as different on the basis of my religion.  And I imagine that there are places where folks were a lot less friendly and accepting.

Fast forward twenty years and these same issues still arise.  The lobby of my office building has a Christmas tree and a Menorah.  But what if you subscribe to a different creed or choose not to practice religion at all?  Discomfort in the office lobby may be just the beginning.  Suppose a colleague offers you a drink and you refuse.  Your refusal may spark improper and bias-driven speculation:  Did you refuse because you are pregnant? Because your religion forbids the consumption of alcohol? Because you suffer from the challenges of substance abuse? No one should be forced to share this information with her employer or her colleagues.  But once the train leaves the station, it may be difficult to get back on track.

And what if your partner is invited?  You may not want to share your sexual orientation with your employer.  But not bringing your partner may engender its own improper speculation.  In a social setting, there are appropriate times to ask about relationship status (e.g. are you single? I would like to set you up with my friend).  But in a workplace, this same question may cross the line by forcing employees to identify their marital status and the gender of their partner.

Even a workplace that invites employees to request accommodation must face these issues.  The act of asking for an accommodation, such as a vegetarian or kosher meal, itself creates an ingroup-outgroup dynamic.

So how do we balance work, friendship, and inclusiveness? I’m not sure. But that doesn’t give us an excuse to ignore the invasiveness of some workplace holiday rituals. Within the well-intentioned may hide the insidious.

And these questions got me thinking about all of the other ways in which employers may inadvertently force employees to expose aspects of their private lives in uncomfortable ways.  So I polled some my colleagues.  One pointed out that an office flag football team (we don’t have one) might involve unwanted touching.  And another pointed out that an office-sponsored 5K might invite questions (or self-reflections) about body image and physical ability that one might prefer to keep from one’s colleagues.

These discomforts may have legal implications, but, more fundamentally, they raise questions about how to build a workplace that values pluralism and privacy at the same time.  Political philosophers have often struggled with this tension in the broader context of the polis. I’m not going to resolve it here.

So the lesson, I guess, is this: Even well intentioned gestures at office harmony and friendship may have the opposite effect.  This unpleasant truth doesn’t mean that we have to shy away from such gestures.  But we should reflect on what we ask people to reveal about themselves. And we should certainly ask whether our attempts at social graces ask too much of others.

Russell Kornblith

Russell Kornblith

Russell Kornblith is the New York Managing Partner who works on both qui tam / whistleblower cases and on discrimination cases. Learn More

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