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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Sexual Harassment

January 11, 2007 - by: Julie Elgar 8 COMMENTS

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.

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Back From Vacation

January 04, 2007 - by: Julie Elgar 5 COMMENTS

LITIGATION VALUE: $150,000

I empathize with Michael. There is nothing worse than the sinking feeling in the pit of your stomach when you realize that you just accidentally forwarded that witty e-mail (which you worked on all morning) mocking your boss’s bad suits and strange habits to your boss, herself, rather than to your clever cohorts in accounting. Not only could such an error get you fired, but careless e-mails often cause even bigger problems. Indeed, e-mail is fast becoming the “smoking gun” of employment litigation and threatens to become even more so with the implementation of new e-discovery rules which require employers to retain and produce volumes of electronic information during the course of litigation. And, just a hint, even if you are able to “recall” the e-mail, most people have already read it. My advice is to think twice before sending any e-mail and, if you would not feel comfortable printing the same message on company letterhead, then don’t send it. Well, that and to ALWAYS, ALWAYS double check the recipient.

On a somewhat related note, the relationship between Michael and Jan will also have potential plaintiff’s lawyers seeing dollar signs. Sure, everything was great in Jamaica. But what happens after the tans fade (or after Jan learns that Michael sent a picture of her in a partially unfastened bikini to the entire packaging department) and they split up? While office relationships are never a good idea for anyone, they are potentially disastrous for supervisor and her subordinate. A few months from now, Michael could cry “sexual harassment” and claim that he felt pressured to sleep with her in order to advance his career, and Dundler Mifflin is looking at pricey problem. Plus, Jan has lost credibility with the employees who report to her and will lose the respect of her supervisors once they find out. Of course, these comments could also apply to Dwight and Angela, Ryan and Kelly, and to Jim and Karen. I don’t know about you, but my office does not have nearly this much juicy gossip. Maybe if it did, yesterday would have gone by a lot faster.

Categories: Michael Scott

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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The Coup

October 10, 2006 - by: Julie Elgar 1 COMMENTS

LITIGATION VALUE: $65,000

Somehow I don’t think that having Dwight stand on his desk with the word “liar” hanging from his neck is exactly what Jan meant when she told Michael to get control of his branch. Nevertheless, while Michael’s reaction was extreme, it will probably not expose the company to significant legal liability. Being a bad boss is not, by itself, illegal. To a point. However, when a supervisor’s conduct rises to the level of being utterly intolerable to a civilized community, then a company could be looking at a large verdict in the employee’s (or, more likely, former employee’s) claim for intentional infliction of emotional distress. Lucky for Dunder Mifflin, these claims are very hard to win.

Unfortunately, this difficulty does not always stop the disgruntled former employee from bringing a lawsuit. Sure, the judge might toss the case out of court, but the company will still have to pay an attorney $65,000 (or more) to get them to that point. Not surprisingly, most employers have trouble seeing this as a “win.” In the end, treating employees with dignity and respect, even when they royally screw up, will not only prevent liability, but it might just keep the Company out of litigation all together. And most employers would definitely consider that to be a “win.”

The Convention

September 28, 2006 - by: Julie Elgar 0 COMMENTS

LITIGATION VALUE: Nominal (but only because Michael’s party was a flop)

Unfortunately for employers, what happens in Vegas does not always stay in Vegas. As a result, employers are increasingly faced with liability for their employees’ “booze-fueled sex romps,” as Michael so elegantly put it. Maybe it’s the exotic locale, or maybe it’s the free liquor, but one thing is certain: Conventions can be fertile grounds for employment-based lawsuits. Sometimes, between their second and third martinis, employees seem to forget that they are representing their employer and that their company’s policies, especially the sexual harassment policy, remain in effect. Too often you hear tales of the intoxicated supervisor who invites his (or her) young associate to visit his (or her) hotel room. Not generally the type of evidence that you want to be faced with. Lucky for the company, Jim was the only person who actually went to Michael’s party.

As for Toby, I’m just glad that his conscience kicked in at the last minute. Either that or he lost his courage. Either way, it was probably a good thing that the director of human resources did not proposition the receptionist.

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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