Most trial lawyers I know like to watch television dramas about trial lawyers. "Boston Legal," "Ally McBeal," "L.A. Law," "Perry Mason." After all, what trial lawyer wouldn't want to draw out the confession from the state's witness like Perry Mason did every episode? Who wouldn't want to make the jurors cry with a gripping closing argument like Alan Shore does?
For employment lawyers, though, nothing beats the NBC comedy, "The Office," a show with hardly any lawyers at all. This American takeoff from the British series of the same name, presents an endless array of employer gaffs with potential legal consequences. Julie Elgar, an employment lawyer in Atlanta, now devotes a blog to this mocudrama she calls "That's what she said". Elgar's blog gives a brief legal analysis of each episode of "The Office," usually including her estimate of what the employer's behavior would cost a real company if it were sued for the over-the-top behavior at the fictional Dunder Mifflin. For instance, Elgar suggests that the company would face damages over $800,000 for the episode in which the boss has sponsored a bachelor party in the warehouse, hired a stripper and subjected the receptionist to a lecherous pervert dressed up like Ben Franklin.
As viewers, we all cringe with bemusement when we see the dysfunctional antics at Dunder Mifflin -- fat jokes and "grandma" references targeted at graying, zaftig Phyllis; sexual innuendo aimed at soft-spoken receptionist Pam; race references to either of the two black characters, Stanley and Daryl; Dwight's power-hungry, sometimes paramilitary, contempt toward women.
In the episode titled "Sexual Harassment," the boss and main character, Michael Scott, is confronted by Toby, the human resources director. Toby tells Michael that a lawyer from corporate is coming to discuss Michael's behavior. Michael protested: "What's a lawyer going to come in and tell us -- to not send out hilarious e-mails, or not tell jokes?" I laughed out loud at that line, because it parodies a growing sentiment that pervades office environments, amusement parks, and just about everywhere else risks are present: The lawyers have sucked the fun out of everything.
Everyone who watched the episode knows, or ought to know, that it is not acceptable for Michael to ask Pam to act out a lesbian love scene during an anti-harassment seminar. That's what makes it funny. We are not laughing at the expense of the victims of Michael's behavior, but at Michael himself. His lack of self-awareness and social polish make him ideal for us to ridicule. Yet, many of us silently cheered his diatribe against the threat of getting a lawyer lecture because we too fear the sterilization of the workplace. Michael wants to make work fun. He just doesn't know how. After all, selling paper over the telephone out of an office in Scranton, Penn., is hardly glamorous. "What are we supposed to do," Michael asks rhetorically, "scrutinize every little thing we say and do all day? I mean, c'mon!"
Maybe people are just a little bit too sensitive and cautious in the workplace these days. But, not all offended employees fit the mold of Angela, the scornful humorless character from "The Office." Most are ordinary people with ordinary sensibilities who just want to be treated respectfully and fairly. Employers should be able to meet that minimum standard. Judging from the court dockets, many fall short.
Since January 2006, there have been more than 16,000 civil rights employment cases filed in federal district courts throughout the country. Scores of other cases are being prosecuted in our state courts and through administrative agencies. Of course, many of these cases fail. To win a case based on a "hostile work environment," for example, an employee must show more than sporadic offensive jokes or teasing. The U.S. Supreme Court requires proof of "severe or pervasive" conduct. Words alone that "merely constitute ordinary tribulations of the workplace" are not enough. However, when an employer knows discriminatory harassment has occurred, it has an affirmative duty to prevent those types of actions.
Most cases do not have the sort of overt boorish, sophomoric, behavior we see on "The Office." Discrimination in the workplace is usually more subtle, and perhaps more insidious. Employers are at risk of losing a lawsuit even when the offending conduct is not motivated by the intent to discriminate. Under Title VII, a federal statute which prohibits discriminatory conduct, a victim of discrimination need only prove that he or she has experienced the consequences of conduct, such as unequal pay, promotion, benefits and work status. Even the boss who unconsciously passes the big clients to the male sales staff is creating an unlawful disparate impact on the female sales staff.
Discrimination in the workplace has not been eradicated, as the frequency of lawsuits illustrates. But you can be sure that none of the cases will be brought because the workplace is too fun.
This guest column was published in the Portland Business Journal on April 27, 2007.