Litigation Value: Nothing this week — unless the magician sues for emotional distress.
Tonight’s “gently viewed” episode, “Welcome Party,” finds the gang dragooned by Robert California into performing favors for Robert’s newest crush, Nellie. Jim and Dwight are sent to help Nellie unpack her 30 boxes from London (and two trunks from Florida) into her new apartment, while the rest of the office is tasked with organizing a party to welcome Nellie into their community. Because Nellie is universally disliked, however, the party planners decide to throw her an intentionally bad party (as opposed to all the unintentionally bad parties in this history of the office). But when Jim and Dwight stumble across some personal history about Nellie (involving a stage magician) that shows her more vulnerable side, Jim calls Pam to tell her to put the kibosh on the plans. Alas, plans are too far along for Pam to do so. At least the office mates agree to use a code word (“Pam”) when referring to Nellie, so Nellie never realizes that the mean comments are directed at her. And Jim and Dwight gallantly come to Nellie’s side by ruining the magic act brought in for Nellie’s party (it makes sense if you see the episode).
Group bullying of this sort is, of course, not very nice, even if its target is herself rude and thoughtless at times. But would the actions of her co-workers give a claim against Dunder-Mifflin, assuming Nellie learned that they were directed at her? Not likely. The statements were not because of, or based on, any protected characteristic, such as race, gender or age. Certainly they could be perceived as “hostile” but, contrary to popular opinion, courts generally do not recognize claims based simply on hostility in the workplace — the workplace has to be hostile based on a protected category. Indeed, courts have held that the anti-discrimination laws are not a general “civility code.” So, although this conduct could lead to problems down the road (and should be nipped in the bud), it should not provide a basis for liabiity. Moreover, Nellie’s own inappropriate statements about members of ethnic groups, seen earlier in the episode, would make it more difficult for her to claim that she was harmed by the conduct.