Growing Up Grotti

October 16, 2009 - by: Kristin Starnes Gray 4 COMMENTS

Litigation Value: Oscar’s damages–climbing; diversity and harassment training from a trained professional–$2,000; backing off the mafia–priceless.

It’s a new episode of The Office that has Michael, Dwight, and Andy convinced that an insurance salesman is part of the mafia based on “his southern Italian heritage.”  While it was entertaining for viewers to watch the trio (and Pat the Mechanic) battle a perceived low-level mafia shakedown, it is certainly not office-appropriate conduct.  Looks like our friends at Dunder Mifflin need a refresher on national origin discrimination, and I am sure Oscar would agree.  National origin is not limited to the country where a person was born, but it also includes the country from which a person’s ancestors came.  In addition, national origin discrimination can include discrimination because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group.  An employee’s objective appearance can form the basis for an unlawful discrimination claim.  For example, the Third Circuit found that an employee was discriminated against as Hispanic even though the employee regarded himself as a Sephardic Jew.

Although Mr. Grotti does not have a national origin discrimination claim (given that he is not a Dunder Mifflin employee), Dunder Mifflin should strongly consider diversity and harassment training, because this is not the first time Michael has exhibited a lack of sensitivity when it comes to an individual’s national origin.  For example, I am sure most of us remember Michael asking Oscar if there is a “less offensive” term for “Mexican” or when Michael told everyone that Oscar was the voice of the Taco Bell dog.

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Quitting Time

March 20, 2009 - by: Troy Foster 2 COMMENTS

Litigation Value: $60,000

Michael, Michael, Michael. What went wrong? What happened to turn you into this new, bitter man? And why couldn’t you have quit before you cost the company thousands more in potential judgments?

Before we get to Michael’s actionable conduct, let’s first touch on the new guy, Charles Minor. Fortunately, it is almost impossible for a manager to file a claim for sexual harassment, because the new Dunder Mifflin vice president was the target of some pretty disturbing (read: awesome) and unwanted flirtation. Kelly made no bones about her quest to get the “black George Clooney” to buy her a prime rib; and Angela wasn’t much better, stealing Charles’ scarf and being overly creepy and affectionate toward him. Even though Charles may not have a claim against the company, though, others might. The risk in this situation is that Kelly’s and Angela’s shenanigans could lead to an unintended victim claiming to be offended by their actions.

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Joking About Homosexuality at Work Is No Laughing Matter

October 06, 2008 - by: Troy Foster 1 COMMENTS

The second week of the new TV season and no new episode. Seriously. Not cool.

Since I already wrote about Sarah Palin a few weeks ago, I’m just going to use something I didn’t cover in last week’s episode.

There was a funny part where Oscar played a joke on Holly about being offended with her comment that maybe she should turn into a lesbian. Holly saw her life (or at least her career in HR) flash before her eyes as Oscar said with a straight face, “Oh, you think it’s a choice.”

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Gay Witch Hunt

March 30, 2007 - by: Julie Elgar 2 COMMENTS

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.

Gay Witch Hunt

September 21, 2006 - by: Julie Elgar 0 COMMENTS

LITIGATION VALUE: $0.00 to $450,000+ (depending on which state you are in)

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.

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