Last night’s five episode marathon of The Office was an HR executive’s nightmare!  Below, I’ve blogged about the litigation value of each of the five episodes separately — four of which are entirely new entries as the episodes were from previous seasons.  While they aired as individual episodes, if these incidents were to occur in a series over the course of a few weeks as suggested by the special, Dunder Mifflin would be shelling out serious cash.  The episodic litigation values would increase dramatically putting the company on the hook for even more money, not to mention some horrible press.  Definitely an HR nightmare!

Litigation Value $450,000

Overall, I’d say that Oscar has a good (read expensive) claim for sexual orientation discrimination and retaliation. Not only does Michael admittedly refer to employees as “faggy” when he means “lame,” but he specifically refers to Oscar, a gay employee, as “faggy.” Then, after Toby confidentially tells Michael that Oscar is gay, it just gets worse. A lot worse. As you might have guessed, an appropriate response to an internal complaint of sexual orientation discrimination is not to launch a covert mission to determine if other employees are gay; to order “gaydar” from Sharper Image; to ask employees if they ever “experimented” in college; to publicly disclose an employee’s sexual orientation; and, certainly, not to forcibly kiss them on the lips during a meeting. All of these actions could lead to liability. And while federal law does not prohibit private employers from discriminating against their employees on the basis of sexual orientation, the laws of at least 17 states do. And even in those states that don’t have laws prohibiting sexual orientation discrimination (such as Pennsylvania), there will certainly be some type of common law tort action filed. And it just might be an expensive one.

Recently, in New Jersey, an employer settled a sexual orientation discrimination case for $450,000. In that case, a police officer claimed that he was harassed by coworkers and town officials and denied a promotion after they learned he was gay. (See Len v. Haledon, N.J. Super. Ct., No. PAS-L-2286-04, settlement, 1/10/07). And all Dunder Mifflin had to pay was three months of Oscar’s salary and give him the use of a company car. Personally, I think they got a good deal.

Litigation Value $ 30,000 (or if Dwight’s injuries are permanent, then $500,000)

I don’t know whether a concussion suffered when rushing off to “save” your boss after he burns his foot on a George Foreman grill would be considered a workers’ compensation injury, but if it is, Dunder Mifflin (or, more accurately, their insurance carrier) is looking at paying Dwight some money. Under the workers’ compensation laws, Dunder Mifflin is probably on the hook for Dwight’s medical expenses and a percentage of his lost wages. On the bright side, these damages are far less than they would be in a tort action, which, luckily, Dwight would be precluded from bringing against the Company.

And no, a slightly toasted foot is not a disability under the ADA. While many impairments that you never dreamed would be considered a “disability” are often covered by the law, I just can’t see how this one would be. Nevertheless, Michael’s training to promote awareness about individuals with disabilities is probably not going to do much to get Dunder Mifflin out of the hot water it got itself into when Dwight re-did the health plan.

LITIGATION VALUE: Over $700,000

It would be pretty safe to say that any time a company’s regional manager asks a female employee to act out a lesbian love scene during its anti-harassment training you have problems. Expensive problems. Not only does the company face liability for Michael’s actions in contributing to the hostile working environment but his treatment of and attitude towards the seriousness of sexual harassment claims could jeopardize the company’s ability to defend itself in the future.

One of an employer’s primary defenses to a sexual harassment claim is that it took reasonable care to prevent and correct any sexually harassing behavior and that the employee unreasonably failed to take advantage of the employer’s policy. To prove this, a company must show, among other things, that it has a sexual harassment policy and that it provides training to its employees on that policy – just like Dundler Mifflin’s corporate office was trying to do before Michael got involved.

Litigation Value:  $500,000

If I were Kevin, I would start daydreaming about how to spend the windfall I will receive from the litigation lottery.  Off the cuff, I’d guess that he has a great claim for damages after being forced to publicly disclose that he has anal fissures –  especially if Dunder Mifflin later takes some sort of adverse action against him.  It should (but obviously does not) go without saying that employers can’t ask their employees to disclose confidential medical information in a large conference room in front of their peers.  The Americans with Disabilities won’t let you do it.  It just won’t.  In fact, it prohibits an employer from making medical inquiries of employees in all but the most limited of circumstances.  And, believe it or not, one of those circumstances is not trying to figure out the new health insurance plan.

LITIGATION VALUE:  $800,000

If I represented Kelly, I think my opening statement would say something like this:
Ladies and gentlemen of the jury, we are here today because Kelly Kapoor’s right to work in an environment free of discrimination was violated when her boss, Michael Scott, repeatedly made negative comments about her heritage culminating in an incident in which he openly mocked her during a training meeting by doing an imitation of an Indian convenience store owner.

Today Dunder Mifflin will take the stand and they will tell you about their efforts to promote a diverse workforce.  They will tell you they acted as a good corporate citizen by maintaining a policy prohibiting discrimination in the workplace and that they enforced that policy by taking prompt remedial action in response to a complaint that Michael Scott, a regional manager, acted in a racially insensitive manner.  Dunder Mifflin will even tell you how they hired a consultant to provide diversity training.  But the evidence paints another picture.

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LITIGATION VALUE: The jury is still out . . .

NBC will not be airing an episode tonight but be sure to check back next week when NBC will show five episodes containing the most egregious workplace violations imaginable. Toby, our own HR Hero, will be hosting the fun-filled evening.

I don’t want to spoil the surprise, but in one of the episodes Dwight makes his colleagues publicly disclose their health conditions to help him choose a cheaper health plan. In another episode, Michael decides to conduct his own diversity training by asking employees to act out ethnic stereotypes for their co-workers. I feel safe in saying that the cumulative litigation value for next Thursday will exceed all others. By leaps and bounds.

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LITIGATION VALUE: STILL 300,000+ (for the time being. . . )

I don’t think that the “newpeats” introduced any new story lines that would significantly increase the litigation value for these episodes – for the time being. It would, after all, be harder to make things much worse. Having a regional manager tell a Hispanic employee that his Mexican heritage “defines” who he is and then suggesting that he ride a donkey to the Mexican-themed office party in his honor is going to remain a troublesome little piece of evidence. But we already knew that, didn’t we?

Let’s talk for a minute about Andy’s little outburst. I can’t seem to figure out why Dunder Mifflin didn’t just fire him. He punched a hole in the wall. At work. Sure, we all want to do the same thing some time, but we don’t. It’s called impulse control. Andy doesn’t have it. Why would Dunder Mifflin want to keep someone like that? While anger management training would be a step in the right direction for an employee worth salvaging, Andy is not one of those employees. He performed terribly at his sales call, created morale issues and conflict in the workplace, and he is, quite simply, a bit of a weasel. And what happens if the next time that Andy loses his temper he injures someone? We lawyers like to call that “negligent retention.” And, unlike Oscar’s claim, it has no damage caps.

I’m excited for this Thursday’s “newpeat.”  NBC will show two previously aired episodes (“Traveling Salesman” and “Oscar’s Return“) combined with new, never-before-seen moments.  One can only assume these never aired moments will include the antics we have come to expect from the Dunder Mifflin gang!  Stay tuned for my analysis on Friday.

LITIGATION VALUE: Two weeks pay.

Michael’s theory that a merger is like a marriage is an interesting one. He just seems to have forgotten that more than half of all marriages end in divorce. This week’s “divorce” was with Anthony Gardner, the employee Michael drove away with his crazy antics. Indeed, if it wasn’t bad enough that Michael humiliated Anthony by trying to lift him onto the conference room table, he fired Anthony when he objected to his unconventional management style. And as so often is the case when Michael is involved, Dunder Mifflin had to step in and write a check.

Barring some sort of contractual arrangement, the company was under no legal obligation to pay Anthony any severance. They could have just sent him packing. But if your regional manager is going to show the new black employee where “the slaves” sit; tell a female employee that she looks “exotic” and then ask her if her father was a GI; or turn the company’s orientation into a rap video, then it may not be such a bad idea to pay a little bit of severance in exchange for the employee’s agreement to sign a full release promising not to sue the company. Let’s see, a Company gives someone a sum of money so that they will never have to see or hear from them again — well, maybe a merger is a little like a marriage after all . . . .