Litigation value: $0.00 provided Dwight reins in his hostility to Nellie’s anxiety meds.

Amidst the costumes, bad investments, and a cappella singers (OMG COLBERT!!!!!), this week’s episode — Here Comes Treble — reminds us that harassment on the basis of disability is just as verboten in the workplace as sex- or race-based harassment. Dwight found a little yellow pill under the sofa and learned it was anxiety medication. So he started hunting for the office “crazy person.” He eventually learned that the medication was Nellie’s and fortunately left it alone after that.

But what if instead Dwight started teasing Nellie for being on anxiety medication? And what if Nellie complained about Dwight to Andy but nothing was done, or worse, Andy joined in the teasing? And what if Dwight’s unremedied teasing made Nellie’s condition worse, even to the point that she could not work anymore?

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Litigation value: Ryan gets nothing today, but in a few years ….. who knows?

The ADA Amendments Act of 2008 (ADAAA) significantly broadened the ADA’s definition of disability. Ryan had me asking myself how much during last night’s rerun episode, Trivia. During the trivia contest, the organizers confiscated Ryan’s smartphone. Ryan held out for all of eight seconds before deciding that he would rather be ejected from the bar with his smartphone than remain there and compete for $1,000 without it.

Does Ryan have a disability under the ADAAA? Might Dunder Mifflin have to seek a reasonable accommodation for Ryan if he requests one? The answer today is likely “no,” but that could change in the not-too-distant future.

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Litigation Value: $0.00 for Gabe’s intentional infliction of emotional distress lawsuit against Erin. Stanley’s ADA action for his diabetes is primed and ready.

Michael’s final turn hosting the Dundies reminds us why The Office has been a source of so much material since this Blog launched five years ago.  Just about every award could be evidence in a future discrimination or harassment lawsuit — “Hottest in the Office,” “Diabetes Award,” “Cutest Redhead in the Office,” “Extreme Repulsiveness.”  If Michael misses his colleagues, he may get a chance to see them again … at his deposition.

Gabe likely feels aggrieved and may be tempted to sue Erin for the emotional distress she caused by using her acceptance speech as an opportunity to dump him in public. But Gabe should think twice before filing suit. In Sanders v. Rosen, a New York court refused to recognize termination of a romantic relationship as the basis for an emotional distress action. Most jurisdictions, however, do recognize a cause of action for stalking. Move on, Gabe. You should know better than to date a subordinate.

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Prison Sentences for Michael, Dwight, and Jim: Up to seven years for interception of oral communications plus up to seven years for attempted theft of trade secrets. There may also be criminal conspiracy prosecutions against Meredith, Oscar, and Ryan.

Litigation Value: Danny Cordray’s action for invasion of privacy and intentional infliction of emotional distress against Dunder Mifflin and several individuals = $250,000. Osprey’s action against Dunder Mifflin and several individuals for misappropriation of trade secrets = an injunction and damages to be proved at trial.

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Litigation Value: Training on Diversity and Harassment = $5,000; Settlement of Countless Employee Claims = a Shocking Amount; Years Worth of “That’s What She Said” Jokes = Priceless.

With Michael’s final season quickly approaching, last night’s repeat got me thinking about all my favorite Michael moments over the seasons. While Michael can be a human resources nightmare, he certainly has made us laugh (when we weren’t cringing).  Here’s a list of my top 10 favorite examples of Michael’s “dash of razzle dazzle” management style. Who knows? Maybe TBS will even include a few of them during its Labor Day marathon of The Office.
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Litigation Value: de minimus damage award (after spending $50,000 to “successfully” defend the lawsuit)

He rarely disappoints, and this week was no different. Michael Scott was in rare form in this week’s issue of The Office, “The Lover” (or should this episode have been titled “The Mother Lover” for all you SNL fans). Michael revealed to Jim that, since meeting her at Pam and Jim’s wedding, Michael has been engaged in a love affair with Pam’s mother. As Pam quickly learns, while it might be fun to office gossip when it involves someone else, when it involves you, not so much. (Oh, by the way, do you know anyone who would be excited to find out Michael was dating their mother? I don’t. Except, of course, Dwight.)

But it did give us one of the show’s best lines of all time: “Do not talk to me that way. I am your boss. And I may someday be your father.” Where’s Darth Vader when you need him? So to recap: Is it unlawful to sleep with the mother of one of your subordinates? Probably not. Is it a really bad idea? Oh yeah!

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Last week’s episode of The Office, “Goodby Toby,” sure gave us plenty to chew on.  So, I’m taking advantage of this week’s break to turn to another Dunder Mifflin pickle presented by the finale — Kevin.  As we saw, Dwight planted the seed with Holly that Kevin is mentally disabled.  Kevin’s natural demeanor certainly drove the point home.  His disturbing (and often inappropriate) grin, his signature wave, his tone (or odd drone), and his apparent excitement over Holly’s pride in him for driving himself all just seemed like the traits of the Kevin that we all know and love — until Dwight’s joke!

Even though I think Dwight might be onto something (and I’ll never look at Kevin the same again), Dunder Mifflin could get into hot water with a potential claim under the Americans with Disabilities Act.  Even if Kevin is not disabled, the fact that Dunder Mifflin management (Holly) is treating him as though he were leaves us with no legal difference.  Suppose Michael gives Kevin a poor performance evaluation, demotes, or even fires him (not a big stretch).  Kevin can now claim that the adverse action was only taken because Dunder Mifflin “regarded” him as disabled and discriminated against him because of it.

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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:  $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.