That's What She Said

Sex Sells (OK, No It Doesn’t)

Litigation Value: $250,000 for assault, battery, intentional infliction of emotional distress, negligent hiring, and negligent entrustment.

Well, folks, the quintessential horndog — Michael Scott — is back on the stick. And this week, he didn’t disappoint. Michael’s recent announcement that this may be his final year sitting in the boss chair makes us wonder who will replace him; as if anyone could. We’ll address that later.

All right, so check it out: An attractive female, and potential Sabre customer, let’s just call her Donna (because that’s her name), visits the office dressed in eye-catching semi-business wear. Michael wastes no time in jokingly asking: “Did somebody order a hooker?” Soon thereafter, Michael interrupts Jim and Pam Halpert’s PowerPoint sales presentation by offering Donna a dog-eared Victoria’s Secret catalog. Michael further attempts to get Donna “turned on” by hijacking the presentation, superimposing wistful photos of himself, both fully clothed and facetiously standing behind a semi-nude strongman cutout (including an unnamed underwear model).

Finally, in a painful effort at subliminal suggestion, Michael concludes the PowerPoint presentation by rapidly flashing a slide containing the word “SEX.” Concluding the presentation, Michael immediately moves in for a kiss, only to be summarily rebuffed, embarrassing Donna. As a result, Michael nearly kiboshes Jim’s and Pam’s sale.

Following a halftime locker room pep talk, Michael returns to execute Plan B — offer Donna a breath mint. She accepts. Reciprocating Michael’s courtesy, Donna in turn offers him a breath mint, which Michael lovingly nibbles from her extended fingertips. The obviously shocked and offended Donna rebukes him.

The meeting ends, and the undaunted Michael escorts Donna just outside the office vestibule. In a cringe-worthy moment, and in plain view of the entire Scranton staff, Michael zeros in for another smooch, awkwardly crushing Donna against the door and rattling the blinds. Donna refuses his advances — again.

Let’s ignore for a moment the fact that Donna outright taunted, make that tormented, Michael by embellishing her cleavage and exposing her bare shoulders (blouse portholes?). And, let’s equally dismiss the fact that, in the end, she wanted him, too. Had it turned out differently, what liability would Sabre have, if any, had Donna decided to seek legal redress for Michael’s inappropriate behavior toward her?

Whereas sexual harassment laws, particularly those arising under Title VII, are intended to protect employees from a sexually hostile workplace, created either by co-employees, supervisors, and even customers, those laws aren’t necessarily intended to protect customers from advances by employees. In this instance, however, Sabre as well as Michael could face potential liability for assault, battery, and intentional infliction of emotional distress.

In addition, Sabre could be on the hook for negligent hiring and/or negligent retention of Michael. Of course, to hold Sabre liable for its alleged negligence, Donna would have to demonstrate that the company actually had, or reasonably should have had, knowledge of Michael’s propensity to sexually harass, assault, or batter customers.  Given Michael’s history, this is a close call.

Changing gears for a moment, what do we make of Dwight Schrute’s cultural insensitivity and borderline racial harassment? In a selfish attempt to orchestrate Michael’s potential successor, Dwight manipulates Sabre’s newly-announced “Print in all Colors -– Minority Executive Training Program” by goading Kelly Kapoor into applying for consideration. With epic multicultural chicanery, Dwight outright offends no fewer than four Sabre minority employees. Were any of these employees to complain, and Dwight’s behavior go unchecked, Sabre could potentially face liability for a racially hostile workplace and/or national origin discrimination and possibly religious harassment and discrimination. Clearly, however, Dwight’s motives are his own, and obviously driven by his desire to cherry pick his future boss. We’ll see how this develops in the coming weeks.