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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Grief Counseling

October 12, 2006 - by: Julie Elgar 0 COMMENTS

LITIGATION VALUE: Nominal

An employer can do many things to assist employees in coping with grief, but requiring them to attend a bird funeral in the parking lot is not one of them. Also, as a general rule, regional managers shouldn’t be soft shoulders for their subordinates. Certainly, they shouldn’t have a meeting asking employees to disclose their personal struggles in losing a loved one.

Also, just in case you were wondering, it is never an appropriate workplace discussion to speculate about the amount of blood that may have been involved in a former colleague’s fatal car accident. It’s just not.

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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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