Employee misconduct at off-site party may qualify as workplace harassment

Is an employer liable for employee misconduct at “after-hours” gatherings? When a trial court adopted a narrow view of what constituted “the workplace,” an appeals court weighed in using a “totality of the circumstances” test.

Party, the after-party, and after-party complaints

Kelly Phelps worked as a server at a state park restaurant in Tennessee. On October 17, 2017, she and other park employees were strongly encouraged to attend a state-sponsored “adults only” Halloween costume party at the restaurant where many of them worked. At the party, which was planned and thrown by Phelps’ two direct supervisors, employees were encouraged to drink, given “buy-one-get-one-free” drink coupons, and sold homemade Jell-O shots.

After the party at the restaurant, several employees went to an after-party at a building maintenance worker’s residence, which also was located on state property. According to Phelps, it was at this party that Josh Walsh, who was the assistant park manager and “second in command,” grabbed her by the neck and thrust his body against her in a sexually suggestive manner. She claimed this occurred not once, but twice, at the after-party.

Phelps and several other attendees subsequently complained about Walsh’s behavior at the party. The female park manager initially blamed the women and suggested Walsh’s behavior was acceptable. After learning others also had been sexually assaulted, Phelps filed a written complaint with the employer.

Despite the written complaint, the park allowed Walsh to continue working around Phelps and the other women who had alleged harassment: