That's What She Said

Gay Witch Hunt

LITIGATION VALUE: $0.00 to $450,000+ (depending on which state you are in)

Overall, I’d say that Oscar has a good (read “expensive”) claim for sexual orientation discrimination and retaliation. Not only does Michael admittedly refer to employees as “faggy” when he means “lame,” but he specifically refers to Oscar, a gay employee, as “faggy.” Then, after Toby confidentially tells Michael that Oscar is gay, it just gets worse. A lot worse. As you might have guessed, an appropriate response to an internal complaint of sexual orientation discrimination is not to launch a covert mission to determine if other employees are gay; to order “gaydar” from Sharper Image; to ask employees if they ever “experimented” in college; to publicly disclose an employee’s sexual orientation; and, certainly, not to forcibly kiss them on the lips during a meeting. All of these actions could lead to liability. And while federal law does not prohibit private employers from discriminating against their employees on the basis of sexual orientation, the laws of at least 17 states do. And even in those states that don’t have laws prohibiting sexual orientation discrimination (such as Pennsylvania), there will certainly be some type of common law tort action filed. And it just might be an expensive one.

Recently, in New Jersey, an employer settled a sexual orientation discrimination case for $450,000. In that case, a police officer claimed that he was harassed by coworkers and town officials and denied a promotion after they learned he was gay. (See Len v. Haledon, N.J. Super. Ct., No. PAS-L-2286-04, settlement, 1/10/07). And all Dunder Mifflin had to pay was three months of Oscar’s salary and give him the use of a company car. Personally, I think they got a good deal.