The Scariest Costume on Halloween is One Worn in the Workplace

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Some employers allow employees to wear costumes on Halloween as a treat; unfortunately, it can turn into a trick-y situation.  Halloween costumes can often be either gory, racy, or offensive: any of the three should scare employers.

Employers can be liable for costumes that make fun of protected characteristics such as disability status, race, or sex.  Costumes that caricature people’s nationalities, cultures (“Hey Amigo Donkey Costume” ; “Dragon Lady”), and religions (“Pregnant Nun”) or embody tasteless stereotypes (“Muslim Terrorist” ) don’t belong in the workplace.  Such race-based costumes can support a hostile work environment or discrimination claim.  In addition, though risqué costumes do not invite or excuse lewd comments, such costumes may elicit inappropriate responses that could later support a sexual harassment claim (See Devane v. Sears Home Improvement Products, Inc., 2003 Minn. App. LEXIS 1514 (Minn. Dec. 23, 2003); in that case, the plaintiff successfully sued for sexual harassment; one of the facts alleged in support of her claim was that when she came to work on Halloween wearing a doctor costume, her manager pointed to his groin and said “it hurts here”).

In addition, even when costumes do not subject employers to liability, the costumes may be offensive or off-putting to customers and be bad business sense.  For example, it may be offensive for a  movie theatre employee to dress as James Holmes, the mass murderer who shot up a movie theatre; or for a daycare employee to dress as Michael Jackson.  A costume may also impede an employee’s ability to perform her job or be a safety hazard (in 2011 more than 3,500 Halloween-related injuries were reported; incidents involve falls related to ill-fitting costumes and injuries from collision due to impaired vision; in addition, loose-fitting or billowing fabrics can get caught on machinery or flames).

Halloween frights are in good fun – unless they result in liability or lost business.  Employers that want to celebrate Halloween in a less frightening way can opt for more innocuous activities like hosting a candy buffet or a pumpkin decorating contest.

Wishing all those that celebrate a safe and happy Halloween!


About the Authors

Emma Kazaryan

Emma is an associate in the firm's ligation and employment practice groups.

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