Labor / Employment, On The Job

3 Things ‘The Office’ Taught Me About Employment Law (Part 3)

The term “harassment” gets thrown around a lot these days.

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Summary: Using examples from the popular TV show The Office, this three-part series highlights several important points for dealing with employment issues in the workplace and in litigation. This article is focused on workplace harassment and what it is and what it isn’t.

The term “harassment” gets thrown around a lot these days. If two employees don’t get along, it’s become common to hear one employee complain that the other is “creating a hostile work environment” or “harassing” them. But most of these interactions between co-workers or between management and their subordinates aren’t actionable. They’re just plain old workplace disagreements.

A viable harassment claim typically requires four things: (1) the conduct was unwelcome; (2) the conduct was “because of” a protected characteristic; (3) the conduct was severe or pervasive; and (4) there’s a basis for employer liability (this can be satisfied in cases where a member of management was the harasser, for example). Importantly, when determining whether conduct is severe or pervasive courts apply a pretty high standard.

With this in mind, let’s go through some examples from The Office to see how these factors apply to different factual scenarios.

Scenario 1: That’s not harassment.

One of the best things about The Office was the constant back-and-forth between Jim and Dwight. The pranks that they played on one another were the stuff of legend. Let’s recount a few of them.

There was the time that Jim took all of Dwight’s office supplies from his desk (including Dwight’s personal belongings like his wallet) and put them in the vending machine, and then gave Dwight a bag of nickels with which to get everything out of the machine. There was the time Jim convinced Dwight it was Friday (on a Thursday) so that Dwight would be late for work the next day. There was the time Jim sent Dwight faxes from “Future Dwight.” There was the time Jim relocated Dwight’s entire desk to the restroom. There are too many more to list.

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Did Jim cross a lot of lines in his pranks on Dwight? Sure. Should Jim have been disciplined? I certainly think so. But was Jim “harassing” Dwight such that Dwight had a cause of action against Dunder Mifflin? Nope.

Jim’s actions were never based on a protected characteristic, such as race, gender, or religion. Jim pranked Dwight because Jim was bored and Dwight was an easy target (since Dwight was infuriating and he sat right beside Jim). He was not targeting Dwight for an unlawful reason. So, that was definitely not legally-actionable harassment.

Scenario 2: That might be harassment.

If you’ve watched The Office, you’ve probably seen the episode titled, “Diversity Day.” In this installment, Dunder Mifflin corporate sends a consultant to the Scranton branch to train the staff on racial diversity after several staff members complained about Michael Scott’s racially-charged Chris Rock impersonation.

Michael, of course, thinks the consultant’s training is a waste of time, and decides to hold his own self-created diversity training program. Michael opens his program with brief video he made just beforehand in his office, in which he claims that his heritage is “two-fifteenths Native American.”

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After watching the video, Michael instructs all of the Scranton employees to wear index cards on their foreheads without looking to see what’s written on the card before taping it to their forehead. Once everyone’s card is attached, we see that each person’s card has a different race or nationality written on it. Michael then tells everyone to pair up and treat their partners how they might treat someone of that race. The person wearing the index card was supposed to try and guess the race written on their card using the clues.

This of course turns out horribly. As the camera moves between groups, we observe individuals using offensive accents and relating negative stereotypes about the race or nationality on their partner’s forehead. Everyone is offended. (This is also when Michael gets slapped by Kelly Kapoor.)

If someone decided to sue Dunder Mifflin over this, would they win? Maybe. It’s certainly a closer call than Jim and Dwight’s shenanigans.

The conduct here was clearly based on a protected category or categories, race and/or nationality, so a potential plaintiff would have that going for them. Courts, however, generally require the conduct to be more severe or pervasive than what we see in this episode. For example, there are many, many cases where racial epithets have been directed at an employee on a limited or isolated basis, and courts have held that the conduct was not sufficiently severe to be legally actionable. The diversity training was a one-off incident.

If, for example, Michael held this diversity training exercise on a regular basis and this conduct continued over a long period of time, a court may find actionable harassment. A court may also find for a plaintiff if the racially-charged language was accompanied by some kind of physically threatening behavior.

Scenario 3: That’s probably harassment.

I think any (or all!) of the women working in Dunder Mifflin’s Scranton branch would probably have a viable harassment claim based on Michael’s conduct throughout the show. The conduct was unwelcome and based on a protected characteristic (gender), and it was pervasive throughout their employment.

There are so many examples to use here. Let’s start with Michael’s signature line, “That’s what she said.” Michael was always on the alert for a good setup for this phrase. There was the time Michael’s boss, Jan, scolded Michael, telling him, “I can’t stay on top of you 24/7.” There was the time Michael was being deposed and the lawyer asked him (in relation to his subordinate role under his supervisor, Jan), “And you were under her the entire time?”

But that’s not all. Michael routinely comments on his female employees’ appearances, their relationships, their sex appeal, and many, many other things that would be pretty damning evidence in a harassment lawsuit. Michael Scott was any company’s worst nightmare, and he created a lot of liability for the fictional Dunder Mifflin.

Conclusion

Hopefully these examples shed some light on what kind of conduct is actionable harassment and what is not. While all of the conduct above warranted disciplinary action against the offender (including possible termination), not all of it created liability for Dunder Mifflin. It did certainly create some great television, though.

evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)

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