"That's What She Said" - An Employment Lawyer's Case Study of the Office

by Colin Hunter Hargreaves | Apr 09, 2019

 

As an attorney specializing in labor & employment, commercial, and consumer class action litigation, I have been searching for a stimulating medium that would allow me to combine two of my passions: employment law and witty mid-2000s sitcoms. Fortunately, those passions meld together perfectly when discussing one of my all-time favorite series, The Office. The show is perfect because it offers an approachable contextual backdrop in which to provide legal commentary on comical workplace issues (and there are many).

To that end, I will begin the re-watching the series (for the thirtieth time) and provide comprehensive legal research and thoughtful analysis on a variety of unique workplace issues that arise, including discrimination, retaliation, harassment, whistleblowing, downsizing/layoffs, and many other subjects. To add additional perspective, I will also have human resource professionals and various attorneys contribute to each article to provide their observations.

Diversity Day: Don’t Be Like Mike

To begin this introductory article, we start off with one of the more notorious episodes—Season 1, Episode 2: “Diversity Day.” Long hailed as one of the best episodes by fans, “Diversity Day” broaches the subject of racial diversity in the workplace.

Michael’s “Diversity Tomorrow” Initiative

Although the benefits of a diverse, inclusive workforce are myriad, employers would be wise to steer clear of initiatives like Regional Manager Michael Scott’s disastrous version of “Diversity Day.” In this episode, we discover that Dunder Mifflin Paper Company hired a diversity consultant to train its Scranton Branch (but really just Michael) on diversity after the corporate office heard about Michael’s imitation of a famous Chris Rock routine (racial epithets included). To the surprise of no one, Michael quickly derails the corporate-sponsored training, and after the consultant leaves, conducts his own “training” put on by his fictitious “Diversity Tomorrow” organization.

Michael, being divorced from reality and bereft of common sense, has his employees affix index cards with different races and ethnicities to their foreheads with the goal of having each person guess what race/ethnicity is on their respective foreheads. To aid in his lofty endeavor, Michael encourages his employees to use offensive stereotypes so the other person can guess what is on his/her forehead more easily. What could go wrong? Notably absent from most of the training is Kelly Kapoor, an Indian-American employee. Kelly returns near the end of Michael’s training only to have Michael lambast her with racial comments and stereotypical impersonations of her Indian heritage. Michael mocks Kelly to the point that she becomes upset and slaps him before storming off. End scene.


Legal Primer

Let me begin by laying out some legal framework. For the purposes of this series, I will be using Minnesota and Eighth Circuit law since that is where I practice and expect most of my readership to be located. (Note: Scranton, the main setting of The Office is in Pennsylvania, and the law may differ there.) More specifically, I will be analyzing everything under Title VII of the Civil Rights Act (“Title VII”) and the Minnesota Human Rights Act (“MHRA”). Title VII is a federal law prohibiting discrimination in the employment context.1 Likewise, Minnesota adopted a similar law – the MHRA – prohibiting discrimination, inter alia, in the workplace.2 Together, these two laws will serve as the legal basis to this, as well as future, analysis.

Pursuant to the MHRA,3 “it is an unlawful employment practice for an employer, because of race, color, . . . national origin . . . to: (1) refuse to hire or to maintain a system of employment which unreasonably excludes a person seeking employment; or (2) discharge an employee; or (3) discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.”4 Simply, an employer cannot discriminate against someone because of, inter alia, their race, color, or national origin. This occurs most commonly when an employer terminates an employee because of the aforementioned traits. Sometimes, there is direct evidence showing the employer’s bias. Other times, the discriminatory conduct is more nuanced, and one must look at their treatment compared to other similarly-situated employees, thinly-veiled comments they heard, and/or circumstances/reasons surrounding their termination.

However, since none of the employees were terminated in this clip, we are dealing with a different type of claim: a hostile work environment claim.5 Morgan Landon, a human resource business partner, agrees, stating “I didn’t see anything that indicates that [a decision that impacted someone’s employment] happened, but I would say that Michael created a hostile work environment.”6 It is important to note, that there is a distinction between an employer being callous towards an employee and an employer being callous towards an employee because of that employee’s membership in a protected class. For example, an employer treating someone poorly because the employee drinks Diet Coke is legal, albeit inappropriate. In contrast, an employer treating someone poorly because of their race is unlawful. To that end, to establish a hostile work environment claim, a plaintiff must establish the following elements: (1) s/he is a member of a protected group; (2) s/he was subject to unwelcome harassment; (3) the harassment was based on membership in a protected group; and (4) the harassment affected a term condition or privilege of her/his employment.7

Moreover, “such condition is not actionable unless it is ‘so severe or pervasive’ as to ‘alter the conditions of [the plaintiff’s] employment and create an abusive working environment.’”8 In analyzing these types of claims, courts will typically look at the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”9 A key indicator of conduct being severe or pervasive is whether it affects the victims work performance.10Lastly, Minnesota law looks to how federal law interprets Title VII when interpreting the MHRA.11Thus, Minnesota oftentimes will cite federal authority when analyzing state law claims.

Race Discrimination? The Answer Is Not So Clear…

To make this analysis easier, lets divide the employees involved in this incident into three groups: (1) the “index card” employees; (2) Stanley Hudson; and (3) Kelly Kapoor.

The index card employees most likely do not have an actionable claim. While the conduct was outrageously inappropriate, many of the Index Card employees are not members of a protected group and cannot satisfy the first element of the test. While accountant Oscar Martinez—a Hispanic and gay man—may have a claim stemming from the index card exercise, due to space and lack of context from his brief appearance in this scene, we will skip over his case. Assuming, arguendo, all others were members of a protected group, the conduct still seems to fall short of the demanding standard. Aside from the Chris Rock and Diversity Day instances, there are no other indications that this conduct happened frequently or specifically targeted one race. Likewise, the offensive conduct did not seem to be severe enough from what was displayed in the clip. In fact, in some instances, an isolated use of an epithet is insufficient for a hostile work environment claim.12 The conduct further did not seem to impact any of these employee’s work, which as mentioned above, is key.

Stanley, however, may have a claim. During Michael’s “training,” Stanley (an African American man) received the index card labeled “Black.” This necessarily required Stanley’s co-workers to use offensive stereotypes that he may have heard before, or that he finds offensive, so that he could correctly guess that his card was “Black.” Stanley, therefore, meets the elements of the above test; however, it is difficult to determine whether the comments towards him would rise to the proper level of severity since we do not see much of his interactions. It very well may have, especially considering the earlier Chris Rock incident. Thus, to settle the inquiry of whether Stanley has a claim, I respond with the typical lawyer response: it depends. If the conduct displayed towards Stanley was offensive enough or happened more frequently, he may have an actionable claim. Furthermore, whether the conduct impacted Stanley’s work performance is unhelpful. Indeed, Stanley has been quoted saying that the majority of his workday is a “run out the clock situation.” So, I would like to see more, but still think the conduct is enough for Stanley to allege a hostile work environment claim.

Morgan, however, departs – albeit, slightly – from my analysis. In her experienced opinion, “[the] context is important: Michael has previously behaved in an offensive manner” and the fact that “[s]teps are being taken to remedy the situation” is dispositive. In her estimation, the fact that Michael—a manager—has engaged in this conduct before, makes this subsequent conduct even more alarming. Nicole F. Dailo, an employment attorney, agrees. She further added that the “misguided diversity training, and offensive joke about the Black community can, taken together, qualify as conduct that is sufficiently severe or pervasive to create an abusive working environment.” Therefore, Morgan and Nicole agree that, when looking at the totality of the circumstances, Stanley may have a viable claim.

Kelly Kapoor’s analysis is even easier. Kelly has a better chance of alleging a hostile work environment claim. Indeed, Kelly meets all of the elements of the abovementioned test. Moreover, Michael’s demeaning and highly inappropriate use of Indian American stereotypes was likely severe enough to rise to the necessary level of a legal violation since it was offensive and seemingly intended to be demeaning (and painful for our contributing HR professional to watch).13 In fact, it was so severe that Kelly grew upset enough to slap her boss. Nicole agrees, saying that “Michael’s demeaning impersonation of an Indian person . . . is sufficient . . . to create an abusive working environment for the affected employee.”

To sum up, my contributors and I believe that the Index Card employees do not have a claim. However, Stanley and Kelly likely have a viable claim of hostile work environment. The only qualification to that is that I think Stanley’s claim is weaker than Kelly’s.

What Action(s) Must Dunder Mifflin Take to Avoid Liability?

The big question I presume everyone is waiting for is whether Michael Scott should get fired? Morgan thinks so. If Morgan was confronted with this situation, she would recommend firing Michael after this incident, and at minimum, suspending him while removing him from his manager position. She reasoned that, in addition to the current conduct, Michael’s judgment would increasingly come under fire. Morgan continued, “Once you have a hostile work environment, it starts to cast doubt on the legitimacy of employment decisions.” Continuing, “Based on Michael’s day to day behavior, can the employees truly trust Michael to not consider their race, age, or gender when deciding pay or who to offer a promotion? Likely not.”

Likewise, Nicole reasoned:

Assuming Dunder Mifflin has a formal disciplinary process, the company should follow that protocol in dealing with Michael's behavior, especially to avoid a potential wrongful termination lawsuit from Michael: document every corrective action that was taken, along with Michael's response to such actions and any lack of improvement. That way, Dunder Mifflin will have a demonstrated record of its efforts to correct Michael's behavior and, if necessary, its reasons for suspending, demoting, and/or firing him. However, to protect itself from future hostile work environment claims, the company should, at the very least, consider removing Michael from his management position, especially if his behavior on Diversity Day is merely the latest chapter in a series of similar missteps. Michael is a liability for Dunder Mifflin, and ultimately, if he fails to correct his behavior after additional training or less severe disciplinary measures, firing him will be the best option.

Lastly, Morgan advised that Dunder Mifflin might want to have upper management visit the office to discuss and explain why these events were inappropriate and take a hard stance against this type of conduct. Nicole also recommended that Dunder Mifflin should follow up on the diversity trainings since Michael never signed an acknowledgement of the corporate-sponsored training, nor “absorb[ed] the purpose of the training.” All of this might help Dunder Mifflin alleviate some potential exposure to these, as well as future, lawsuits. In other words, Jan and Toby will have their hands full adequately responding to this issue.

Times Michael Should Have Been Fired: 1/1

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Disclaimer:

This blog is not intended to give legal advice. The content and views expressed are that of the writer only, and are not attributable to the writer’s employer.
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colinh-headshot

When Colin isn't watching The Office, he works as a second-year associate attorney at a mid-size litigation firm. Colin primarily focuses his practice on labor and employment, commercial and consumer class action litigation. Colin graduated with his juris doctor degree from the University of St. Thomas School of Law, where he was a regular on the Dean's List and participated on two of the school's moot court teams.

Contributors:

Nicole F. Dailo is a third-year associate at Nilan Johnson Lewis, where she practices management-side labor and employment law. Nicole represents Californian and Midwestern companies, focusing primarily on discrimination claims, wage-and-hour disputes, and non-compete issues. Nicole earned her juris doctor degree from the University of Southern California Gould School of Law and, before entering private practice, clerked for the Honorable Julia W. Brand in the Central District of California.

Morgan Landon is an experienced human resources business partner in the manufacturing industry. She has been in this role for approximately five years, where she has experienced a number of interesting employment issues. Before entering the field, Morgan received a masters degree in human resources and industrial relations.

Footnotes:

[1] 42 U.S.C. § 2000e-2, et seq.

[2] Minn. Stat. § 363A.01, et seq.

[3] Id.

[4] Minn. Stat. § 363A.08, subd. 2.

[5] Williams v. Metro Waste Control Comm’n, 781 F. Supp. 1424, 1426 (D. Minn.) (recognizing claim of hostile work environment based on race).

[6] If this was a termination, then the employee would first have to establish a prima facie case of discrimination. This requires establishing that the employee: (1) is a member of a protected class; (2) was qualified for the position; (3) suffered an adverse employment action; and (4) there is evidence to give rise to an inference of discrimination. Green v. Franklin Nat. Bank of Minneapolis, 459 F.3d 903, 913 (8th Cir. 2006). A plaintiff can support their contentions through either direct evidence or the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 (1973). Direct evidence shows a link between the hostility and the termination sufficient to support an inference that the employer acted based upon that hostility. See Wagner v. Gallup, Inc., 788 F.3d 877, 884–85 (8th Cir. 2015). The McDonnell Douglas burden-shifting framework requires the burden to shift to the employer after the employee establishes a prima facie case to show there was a legitimate reason for the employee’s termination. Pederson v. Bio-Med Applications of MN, 775 F.3d 1049, 1055 (8th Cir. 2015). After, the burden shifts back to the employee to establish that the employer’s legitimate reason is pretextual; or rather, an excuse for discrimination. Id.

[7] Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 566 (Minn. 2008).

[8] Id. (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982))).

[9] Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993))).

[10] Arraleh v. Cty. of Ramsey, 461 F.3d 967, 979 (8th Cir. 2006).

[11] Frieler, 751 N.W.2d at 571; Goins v. West Grp., 635 N.W.2d 717, 725 (Minn. 2001).

[12] See Abdel-Ghani v. Target Co., 686 F. App’x 377, 379 (8th Cir. 2017); Cf. Singletary v. Mo. Dep’t of Corr., 423 F.3d 886-892-93 (8th Cir. 2005); see also Goins, 635 N.W.2d at 720.

[13] Lamb v. Village of Bagley, 310 N.W.2d 508, 511 (Minn. 1981) (stating that racial epithets and slurs are only actionable when the comments are intended to be demeaning).