Diversity Day

March 30, 2007 - by: Julie Elgar 0 COMMENTS

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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The “Newpeats”

March 16, 2007 - by: Julie Elgar 3 COMMENTS

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.

The Return

January 18, 2007 - by: Julie Elgar 2 COMMENTS

LITIGATION VALUE: $300,000+

Thank god for damage caps. No matter how well intentioned, throwing a “welcome back” party for your Mexican-American employee by decorating the break room with piñatas, paper sombreros and streamers in the colors of the Mexican flag is not a good idea. Ever. Under no set of circumstances. Sure, Michael (and the party planning committee) meant well, but that is not going to be enough to get Dunder Mifflin out of this one.

The message that Michael’s party sends to Oscar (and to the other employees) is that Oscar is first and foremost Hispanic. Sure, the issue was exaggerated. Come on. It is a sitcom – it has to be exaggerated. In the real world, bias is much more subtle: the manager who does not assign the female employee to attend a conference in another city because he thinks it may interfere with her family duties; assigning black employees to traditionally “black” areas of town; or the unknowing remarks based on ethnic stereotypes. Indeed, in many of the cases that I defend, I see managers and employees who make joking references to pop culture without ever knowing that the reference plays on a negative ethnic (or gender) stereotype. I’m not saying employers should unnaturally sterilize the workplace, I just think that employees, and especially managers, should be aware of how their comments may be perceived by others. And employers should have the necessary training in place to make sure their employees can recognize the red flags when they see them.

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Diwali

November 02, 2006 - by: Julie Elgar 1 COMMENTS

LITIGATION VALUE: $350,000

My grandmother always said that the road to hell is paved with good intentions. I never knew exactly what she meant. Until now. Michael’s diversity training, well intentioned as it may have been, provides ample evidence of discriminatory bias against employees of Indian descent in general and of Kelly in particular. Indeed, Michael’s PowerPoint on famous Indians includes only three people — one of whom is the fictional character Apu from The Simpsons.

Standing alone, the events in this week’s episode, taken either together or separately, probably will not be actionable national origin harassment. It’s a close call, but, generally, one offensive meeting is not enough. On the other hand, if Kelly were to include all of the offensive conduct from past episodes, including the diversity training episode in season one when employees had to act out traits from various ethnic groups, then she has a good case. A very good one. And the fact that Toby sat in Michael’s “Indian Cultural Seminar” without shutting it down just makes it worse.

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