"That's What She Said" - An Employment Lawyer's Case Study of The Office: Sexual Harassment

by Colin Hunter Hargreaves | Oct 15, 2019
Preface

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 my experience with my love for witty mid-2000s television sitcoms. Fortunately, those interests 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 re-watching the series (for the thirtieth or so time) and provide comprehensive legal research and thoughtful analysis on a variety of common and unique workplace issues that arise, including discrimination, retaliation, harassment, whistleblowing, downsizing/layoffs, and many other subjects. To add an additional perspective, I will also have human resource professionals and other attorneys contribute to each article to provide their observations. 

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“Sexual Harassment”: #PhyllisToo

Following my introductory article, “Diversity Day,” is another fan-favorite episode: “Sexual Harassment.” Not surprisingly, this article will focus on sexual harassment and sexual assault in the workplace. (Unless noted otherwise, the names used in this article are those of fictional characters in The Office, and are used for illustrative purposes only.)

The Birth of “That’s What She Said”

I have always wondered whether Michael Scott would show up in the infamous #MeToo [i]  list if he was a real person. Considering that Michael was a mid-level manager in a declining paper company, I am inclined to think not (but don’t tell Michael that). A few steps up the corporate ladder, however, and Michael would most certainly be in Harvey Weinstein territory, with his name appearing next to other infamous names such as Kevin Spacey and Matt Lauer. To illustrate why, let’s dive into this all-time cringe-inducing episode.

The episode opens with Michael discussing his fondness for lewd e-mail forwards (i.e., “50 Signs Your Priest Might Be Michael Jackson” and a video of monkeys copulating). Michael then proclaims himself the “king of forwards” before forwarding several inappropriate e-mails to the entire Scranton branch. 

Shortly after, one of Dunder Mifflin’s traveling salesmen, Todd Packer, arrives and begins gossiping with Michael about Dunder Mifflin’s Chief Financial Officer, Randall, who recently resigned after a rumored affair with his secretary. Todd proclaims that the woman “blew the whistle” on the affair because she was “dumb,” “blonde,” and “incompetent” (Todd is a real class act). Thankfully, Dunder Mifflin’s HR Manager, Toby, intervenes, and he brings Michael aside to inform him confidentially of what really happened. Randall resigned because of sexual harassment allegations, not an affair. To Michael’s dismay, Toby adds that he will need to provide a brief “review” of the sexual harassment policies as a result.

Toby then begins providing a laughable review of the company’s policies when Michael storms in like the Kool-Aid man, carrying a new work acquaintance: a blow-up doll. Michael immediately asks the receptionist, Pam, to act out a scene with him and his new moon-faced co-worker. Pam wisely declines Michael’s not so family-friendly proposal. Shortly after, Jan (Michael’s supervisor) and a corporate lawyer arrive to discuss Randall’s resignation with Michael. While discussing the situation in Michael’s office, Jan is greeted by Michael’s new friend sitting on his bookshelf. Michael capitalizes by quickly making a “that’s what she said” joke. For the diehard fans, this is the birth of Michael’s “that’s what she said” phrase (which ultimately became the namesake of this article series). Throughout all of this, Jan sits silently with her jaw dropped, seemingly refusing to acknowledge Michael’s ridiculous behavior. 

Later in the episode, Todd makes a joke about another employee’s appearance (Phyllis), prompting Michael to reprimand Todd (which is unusual considering Todd and Michael’s relationship). Michael then tries to cheer up Phyllis with sweet remarks and gestures, including commenting on her appearance, kissing her cheek, and then stating that the only thing he is worried about is getting aroused because of Phyllis’ appearance. Enthralling and award-winning television, but an embarrassing work environment.

Here is a clip of some of the highlights.

Legal Primer

Before we continue counting how many times Michael should have been fired, let’s look at some legal framework. As a reminder, 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 [ii]  and the MHRA is the Minnesota equivalent. [iii]  Together, these two laws will serve as the legal basis of this analysis.

The MHRA prohibits discrimination based upon the employee’s sex. [iv]  Included within this prohibition is sexual harassment. [v]  To that end, sexual harassment is defined as: 

Unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when . . . that conduct or communication is made to a term or condition . . . of obtaining employment . . . or conduct or communication has the purpose or effect of substantially interfering with an individual’s employment . . . or creating an intimidating, hostile, or offensive employment. [vi]  

To establish a sexual harassment claim, an individual must prove all but one of the elements of a hostile work environment claim, as previously discussed in my “Diversity Day” article. This requires establishing the following elements: (1) they are a member of a protected group; (2) they were subject to unwelcome harassment; and (3) the harassment affected a term, condition, or privilege of their employment. [vii]  Unlike other hostile work environment claims, a plaintiff does not need to prove that the sexual harassment occurred because of their membership in a protected class. 

Affecting a term or privilege of employment is no ordinary feat. This requires the conduct to be so “‘severe or pervasive’ so as to ‘alter the conditions of [the plaintiff’s] employment and create an abusive working environment’” [viii]  to the point where it interferes with a person’s work or they cannot bear working there any longer. [ix]  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.” [x]  A plaintiff must show that the harassment was both objectively and subjectively unreasonable. [xi]  Lastly, Minnesota law looks to how federal law interprets Title VII when interpreting the MHRA. [xii]  Thus, Minnesota will oftentimes cite federal authority when analyzing state law claims (and the same goes for me). 

Does Michael Keep His Job? (Spoiler Alert: Probably Not.)

Now that we have the framework out of the way, let’s get to the juicy part: whether Michael gets fired. For the sake of thoroughness, I am splitting this analysis up into two groups: (1) Michael’s generic conduct towards all women in the office; and (2) Michael’s conduct towards Phyllis. 

Going through all three of the hostile work environment factors for the “all women” group, the only element at issue here is whether the harassment affected a term or privilege of employment. Thus, the pivotal question we must ask ourselves is whether Michael’s conduct is so severe or pervasive that it altered the conditions of employment for the women of Dunder Mifflin? I’m not sure it does, at least not yet. While highly inappropriate, the conduct was not severe enough, nor does it happen frequently enough for it to rise to the demanding standard. 

For reference, the following are examples are instructive examples of what is insufficient: 

● A single exposure to offensive video tape [xiii]  or making subordinates look at a sexually graphic material/screensaver. [xiv]
● Several instances of inappropriate comments, such as “your elbows are the same color as your nipples,” comments about the plaintiff’s thighs, repeated touching of the plaintiff’s arm, and attempts to look down the plaintiff’s dress. [xv]
● Supervisor asked the plaintiff on dates, asked about her personal life, called her a “dumb blond,” put his hand on her shoulder, placed “I love you signs” at her work station, and attempted to kiss her twice. [xvi]
● The employer asked an employee to watch pornography with him, said that if he touched him inappropriately that he would advance in the company, and made sexual contact with his buttocks, groin, and thigh. [xvii] 
● The employer had inappropriate sexual communications with an employee while pursuing a sexual relationship. [xviii]
● The employer asked an employee for sex without conditioning it on continued employment and pressured an employee to enter into a sexual relationship. [xix]

While Michael’s actions throughout this episode were completely inappropriate, they still seem less severe than some of the cases cited above. But that isn’t to say these employees will never have a claim. If this type of conduct continues (which it does), these women may be able to allege frequent enough sexual and harassing conduct to meet the “pervasive” prong of the “severe or pervasive” standard.

So, if Michael making inappropriate jokes and parading around the office with a naked doll is not enough, what is? That’s difficult to answer since the current standard is so ambiguous. However, one case is particularly illustrative—Eich v. Board of Regents. In that case, a male supervisor touched the plaintiff daily, commented on her beauty, looked down her blouse, ran his fingers through her hair, regularly touched and rubbed her legs, brushed up against her breasts, and regularly propositioned her for a sexual relationship. After years of torture and reporting the conduct internally, the plaintiff sued. The court ruled that this conduct was severe enough to satisfy the “severe or pervasive” standard.  [xx]

The only employee that experienced conduct that is close to the above is Phyllis. In addition to inappropriate jokes, Phyllis was further assaulted by Michael when he kissed and hugged her and told her he gets aroused when he is near her. The assault is important because a single incident of sexual assault is typically enough to state a hostile work environment claim due to the deplorable nature of such acts. [xxi]  Thus, Phyllis likely has a viable sexual harassment claim. Kelsy Martin, a Human Resources Partner, agreed with my assessment. In fact, Kelsy joked that Phyllis and Toby are going to become well acquainted with how much time they are going to be spending together if Phyllis reported the incident. Kelsy further said that if Phyllis were to report Michael and others in the office substantiated her claims, “It is likely that Michael would be terminated.” Finally, Kelsy pointed out that the result would be the same even if Phyllis didn’t report, but one of her co-workers did instead.

What Actions Must Dunder Mifflin Take to Avoid Liability?

So, Dunder Mifflin is in some deep…water right now. The company will likely be vicariously liable for the actions of its supervisors (i.e., Michael) unless it can show that (1) it took reasonable care to prevent and correct any malfeasance, and (2) that the employee unreasonably failed to use preventative measures to stop the harassment/assault. [xxii]  This is known as the Faragher-Ellerth Defense. 

Dunder Mifflin may have a good argument here. Although its training seemed lackadaisical, it did provide sexual harassment policies and trainings (if you can even call Toby’s “refresher” a training). Nevertheless, we do not have enough information on what happened after the events in question to determine whether Phyllis satisfied the second element. That said, Michael may be liable no matter what. 

In response to this incident, Kelsy recommended terminating Michael immediately. In Kelsy’s experience and research, nearly 90 percent of workers who say they have experienced harassment in the workplace never report the harassment. [xxiii]  As such, these two sexual harassment incidents could be evidence of a more ubiquitous issue. Kelsy said that employers are wise to implement zero-tolerance initiatives and terminate anyone after corroborating the conduct. Kelsy further recommended a thorough investigation into this incident, as well as any other incidents that may be occurring as well. With two serious incidents already (the CFO and Michael), Dunder Mifflin would be wise to make sure this is not a culture that embraces harassment. In either event, Kelsy would provide extensive training to the entire workforce (and not conducted by Michael). She further said that the training “should be explicitly clear on what is acceptable behavior.” Interestingly, Kelsy said that many workers do not know the proper boundaries of what is/is not acceptable, and thus they are wholly ignorant that their actions may be harassing or unlawful. Thus, having clear guidelines in place could help alleviate this. 

Accordingly, in my first article, “Diversity Day”: Don’t Be Like Mike, I concluded that two employees may have viable claims against Dunder Mifflin. I will add one more to that list—Phyllis.

Conclusion - Times Michael Should Have Been Fired: 3/3

Footnotes:

[i} Audrey Carlsen, et al., #MeToo Brought Down 201 Powerful Men. Nearly Half of Their Replacements Are Women, New York Times (Oct. 29, 2018), https://www.nytimes.com/interactive/2018/10/23/us/metoo-replacements.html

[ii] 42 U.S.C. § 2000e-2, et seq.

[iii] Minn. Stat. § 363A.01, et seq.

[iv] Minn. Stat. 363A.08, subd. 2.

[v] Minn. Stat. 363A.03, subd. 13.

[vi] Minn. Stat. 363A.03, subd. 43.

[vii] Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 566 (Minn. 2008). See also Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 798 (Minn. 2013) (holding that sexual harassment claims do not need to demonstrate that the conduct was directed at the victim because of their sex).

[viii] 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))).

[ix] Gordon v. Shafer Contracting Co., Inc., 469 F.3d 1192, 1195 (8th Cir. 2006).

[x] 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))).

[xi] Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993).

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

[xiii] Lam v. Curators of Univ. of Mo., 122 F.3d 654, 656-57 (8th Cir. 1997).

[xiv] Duncan v. General Motors Corp., 300 F.3d 928, 931-32 (8th Cir. 2002).

[xv] Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 872 (5th Cir. 1999).

[xvi] Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993).

[xvii] LeGrand v. Area Resources for Community and Human Servs., 394 F.3d 1098, 1102-1103 (8th Cir. 2005).

[xviii] Geist-Miller v. Mitchell, 783 N.W.2d 197, 203 (Minn. Ct. App. 2010).

[xix] Newton v. Cadwell Labs., 156 F.3d 880, 883 (8th Cir. 1998).

[xx] Eich v. Board of Regents for Cent. Missouri State University, 350 F.3d 752, 755-57 (8th Cir. 2003).

[xxi] Grozdanich v. Leisure Hills Health Center, Inc., 25 F. Supp. 2d 953, 970 (D. Minn. 1998) (citing cases).

[xxii] Brenneman v. Famous Dave’s of America, Inc., 507 F.3d 1139, 1145-56 (8th Cir. 2007).

[xxiii] Chai R. Feldblum & Victoria A. Lipnic, Select TaskForce on the Study of harassment in the Workplace, Equal Opp. Employment Comm’n (June 2016), https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm.

Author and Contributor Bios:

colinh-headshot
When Colin Hunter Hargreaves isn’t watching The Office, he works as a second-year associate attorney practicing in the areas of employment, commercial, whistleblower, 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.

Kelsy Martin works as an HR Business Partner for a privately held company in Minnesota where she focuses a portion of her time on employee relations issues. Kelsy graduated with her Master’s in Human Resources Industrial Relations from the University of Minnesota – Carlson School of Management. 


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