Litigation Value: More fodder for a potential lawsuit by Oscar Martinez; at least $10,000-15,000 to help Dunder Mifflin muddle through the competing Darryl-Dwight complaints — and the only reason it is that low is that, at the end of the day, neither is likely to want to escalate their dispute further.

Tonight we were treated to a repeat — or should I say “finely aged” — episode, “The Meeting.” The main story line — in which Michael Scott tries to undercut Jim Halpert’s efforts to get promoted to management, only to learn that Michael would have been promoted as well — doesn’t really involve potential employment law liability to the company. There is plenty to talk about, however, in the “B” plot and the cold open.

The open finds a serious Michael asking Oscar for help about a medical procedure he will be having. Oscar is concerned — at first, perhaps even touched — that Michael would confide in him. But Oscar’s feelings soon turn to shock when Michael reveals that the procedure is a colonoscopy and that he was seeking Oscar’s “expert” advice as a gay man on such issues as to what emotions the procedure might bring and whether he and the doctor should have a “safe word.” Oscar, showing amazing restraint, walks away without dignifying Michael’s questions with a response.

Though extraordinarily inappropriate, Michael’s actions likely are not actionable, at least in isolation. Oscar suffered no adverse employment action, and the comments probably aren’t severe and pervasive enough to create a hostile work environment based on sex or sexual orientation (the latter category not yet being universally recognized as a basis for discrimination). Of course, Michael’s statements cannot be considered in a vacuum but rather in the context of the many, many other times he has said things about Oscar’s sexual orientation and/or made comments of a sexual nature in the workplace. If I were Oscar, I’d add this to the file.

The “B” story line involves Starsky and Hutch — I mean Flenderson and Schrute — making the ill-advised decision to stake-out Darryl’s house to determine if he is faking an injury for which he is seeking workers’ comp. When our daring duo thinks they have the goods on Darryl, Toby uncharacteristically shouts some unfortunate phrases out the car window — to Darryl’s sister, who they had mistaken for Darryl. Turns out, Darryl was hurt after all, though thanks to Dwight’s Adrian Monk-like powers of deduction, Darryl confesses that he misrepresented how he was injured. This causes Dwight to file fraud charges against Darryl and Darryl to claim that Dwight (and Toby, presumably) sexually harassed his sister. And poor Toby gets to handle them both.

Having Toby, the HR director, investigate and report on a situation in which he personally was involved is a bad, bad idea, particularly in a case that has the potential to end up in litigation of some sort. Frequently, the adequacy and fairness of the company’s investigation is challenged in discrimination cases, and a plaintiff’s lawyer wouldn’t have to be Jack McCoy to show Toby’s obvious self-interest in having this investigation come out a particular way. Dunder Mifflin likely would have to get someone from outside the Scranton branch — either an attorney or someone from corporate HR — to conduct an investigation that would withstand scrutiny. Darryl has some colorable claims he could file if he is disciplined — race discrimination (particularly if he ever got hold of the footage showing Dwight trying to imitate him and referring to Darryl getting his physician’s note from “Doctor J”) and retaliation for filing a sexual harassment claim on his sister’s behalf. The only saving grace is Darryl’s confession (apparently backed up by security-cam footage) that he misused company property and attempted to commit workers’ comp fraud. At the end of the day, the doctrine of Mutual Assured Destruction likely would prevent Darryl and Dwight from pursuing their complaints any further.

From “That’s What She Said” - A Ford & Harrison Blog About the Popular Television Series “The Office”

http://employmentlawpost.com/thatswhatshesaid/2010/06/10/aged-like-a-fine-wisconsin-parmesan/#comments