When Santa Is Naughty, Does He Give Himself a Lump of Coal?

by Hirschfeld Kraemer LLP

If so, then Santa should be giving himself a nice chunk of West Virginia’s finest to burn in his stove this Christmas.  According the Associated Press, recently, at a mall in Hingham, Massachusetts, Santa was barred from the mall and charged with indecent assault and battery after allegedly groping his 18 year old female elf. (Why Santa was not relaxing at the North Pole, but rather was working at a mall is not discussed in the article, but needless to say, this writer finds his pre-Christmas appearance deeply disturbing on a number of levels.) Santa stands accused of repeatedly pinching the buttocks of his elf and making suggestive comments.  Bad news for Santa, and quite possibly, very bad news for the mall, and the staffing company, if any, that employed Santa and contracted with the mall for his services. Santa has to answer to criminal charges, but Saint Nick’s magic fingers have likely subjected the mall to civil liability.

Under both Title VII of the Civil Rights Act of 1964 (“Title VII”) and several “Little Title VII” acts under state law, including the California Fair Employment and Housing Act (“FEHA”), an employer is, or may be, liable for the harassing actions of its employees against other employees.

The bar under the FEHA is actually quite a bit lower than under Title VII:  for one, it applies to “any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract.”  In other words, there is a pretty good chance it applies to Santa, as above, when he is working as an employee of a staffing company that contracts with a mall, or merely as an independent contractor.  Also, under the FEHA, an employer has strict liability for the actions of a harassing employee.  So Santa’s bad acts can essentially become those of the mall.

This writer prides himself on seeking and finding the truth.  This odd tale of Santa working at a mall, particularly when he has so much else to do this month, spurred me to investigate this story.  As it turns out (and cover the eyes and ears of the children for this one), there is not, in fact, one “Santa,” but rather, hundreds of professional Santas roaming malls—and getting paid for it–throughout the United States in the month of December.  Although I am sure that this army of doppelgangers is masterminded by the one and only Santa, he apparently has employed his minions to run professional “Santa schools.”  The International University of Santa Claus, for instance, claims to have “graduated” over 2,600 professional Santas and Mrs. Clauses.

Dear readers, I am sure that these bombshell revelations regarding Santa threaten to overtake the real lessons and takeaways here, but be strong of heart and mind.  The most important thing to remember is that an independent contractor relationship, or the employment of temporary employees through a staffing agency, is no shield for liability.  The better plan is to avoid the naughty, and embrace the nice.  Merry Christmas.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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