That's What She Said

Growing Up Grotti

Litigation Value: Oscar’s damages–climbing; diversity and harassment training from a trained professional–$2,000; backing off the mafia–priceless.

It’s a new episode of The Office that has Michael, Dwight, and Andy convinced that an insurance salesman is part of the mafia based on “his southern Italian heritage.”  While it was entertaining for viewers to watch the trio (and Pat the Mechanic) battle a perceived low-level mafia shakedown, it is certainly not office-appropriate conduct.  Looks like our friends at Dunder Mifflin need a refresher on national origin discrimination, and I am sure Oscar would agree.  National origin is not limited to the country where a person was born, but it also includes the country from which a person’s ancestors came.  In addition, national origin discrimination can include discrimination because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group.  An employee’s objective appearance can form the basis for an unlawful discrimination claim.  For example, the Third Circuit found that an employee was discriminated against as Hispanic even though the employee regarded himself as a Sephardic Jew.

Although Mr. Grotti does not have a national origin discrimination claim (given that he is not a Dunder Mifflin employee), Dunder Mifflin should strongly consider diversity and harassment training, because this is not the first time Michael has exhibited a lack of sensitivity when it comes to an individual’s national origin.  For example, I am sure most of us remember Michael asking Oscar if there is a “less offensive” term for “Mexican” or when Michael told everyone that Oscar was the voice of the Taco Bell dog.

In addition to the national origin discrimination issues, this episode also raised sexual orientation and sexual harassment concerns when Kevin told Oscar that he “would LOVE jail.”  It’s not surprising to see an employee engaging in such unacceptable conduct when he has a boss who has made equally (if not more) offensive comments to Oscar about his sexual orientation.  Just a few examples are Michael’s recent colonoscopy comments, calling Oscar “faggy” for his movie choices, and announcing Oscar’s sexual orientation to the entire office.  While Title VII does not prohibit discrimination based on sexual orientation, a number of states have enacted statutes that do.  Further, the U.S. Supreme Court has held that same-sex sexual harassment is illegal and actionable under Title VII.  Should Oscar decide to file suit, it may very well cost Dunder Mifflin a lot more than a three-month paid vacation and a Lexus.