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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Let The Office Olympic Games Begin!

August 08, 2008 - by: Troy Foster 1 COMMENTS

The world is fully in Olympics mode, including our friends in Scranton, who are surely reliving their own Games of the First Dunder-Mifflin Olympiad.

In the episode from the second season, Jim and Pam entertain themselves (while Dwight and Michael are away buying Michael’s condo) by throwing objects into Dwight’s coffee mug. They discover that others around the office have their own games, and the Dunder-Mifflin Olympiad is born.

Not surprisingly, this episode was based on the writers’ personal experience. Surely, we’ve all participated in our own office games of some sort, although hopefully we haven’t played a lot of Oscar’s and Kevin’s “hateball” (or Kevin’s “who can put the most M&Ms in their mouth” game, for totally different reasons, of course). And this isn’t necessarily a bad thing.

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The Envelope Please

January 23, 2008 - by: Julie Elgar 1 COMMENTS

The Academy has voted and the winner is…….Oscar. Stay tuned. We have more awards to come.

Categories: Oscar Martinez

Awards Season

January 18, 2008 - by: Julie Elgar 10 COMMENTS

The Golden Globes were canceled, and it isn’t looking so good for the Oscars. So, in the spirit of the awards season, I have decided to give out a few awards of my own. And I’d like to invite all of you to be the Academy. My first category is “Best Plaintiff in an Employment-Based Lawsuit,” which honors the Dunder Mifflin employee who has been most egregiously wronged by the Company. And the nominees are:

Kevin: Kevin is nominated for his experience in having to admit that he has anal fissures in a room of his coworkers during Season Two’s “Health Care.”

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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.

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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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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