That's What She Said

Double Trouble

Litigation Value: up to $5,000-7,500 to settle Erin’s sexual harassment claim; $2,000 for sexual harassment training (again); up to $10,000 to settle with Michael for failing to protect him from Pam’s slap … and Pam might be spending some of her own money on defending against Michael’s battery claim.

This week on “The Office,” we saw our favorite Scranton residents engaged in their usual bad behavior. Dwight seemed to actually be on fairly good behavior, but of course we soon learned that he was only nice to his coworkers so that they would “owe him,” and he could later cash in the favor to have Jim fired. Did anyone not see that coming? Still, there’s no law against bringing bagels to work! No, what concerned me about the episode were the interactions between Ryan and Erin, and between Pam and Michael.

To start with Ryan and Erin, we’re back on a favorite topic: sexual harassment. Ryan — suddenly a budding photographer, apparently — approached Erin to show her a binder of his “work,” which included a topless photo of Kelly sitting at her desk. He asked Erin if she’d ever been photographed and suggested that she might be interested in posing for his photo series on “exposure in the workplace.” Now, Erin seemed slightly taken aback, but I don’t think there is necessarily company liability here — yet — unless Ryan continues in his attempts to convince Erin to pose for his “series” and someone in management finds out about it but doesn’t stop it. Right now, one request and one picture of topless Kelly are probably not severe or pervasive enough for Erin to succeed on a sexual harassment claim, but it’s a slippery slope — especially if Ryan continues in his newfound passion for photographing his coworkers in various states of undress.

Since Ryan is a coworker, not a manager (anymore), Dunder Mifflin will be liable if Erin can prove, first, that Ryan’s behavior did create a hostile work environment for her and, second, that Dunder Mifflin knew about Ryan’s behavior and did nothing to stop it. At the moment, she probably can’t meet this burden, but if she does file a claim, Dunder Mifflin will probably want to give her some money to nip this one in the bud. And need I even ask the following: Why does Ryan still work for Dunder Mifflin? Yes, I know Michael adores him, but you’d think David Wallace would have something to say about the matter.

Then there’s Pam and Michael. Michael’s relationship with Pam’s mom started badly, with Pam yelling at Michael in front of the entire office, and ended badly, with Pam slapping Michael in the face. I’ll just start by noting that in many areas of employment law, an ounce of prevention is worth a pound of cure. Before a situation ever escalates to the level of violence, managers must diffuse tensions and do whatever is necessary to keep a fight from occurring. Michael completely failed to diffuse tensions, seeing as he was involved in the situation, but Jim and Toby didn’t help either. Jim, of course, was stuck between a rock and a hard place, but Toby actually made things worse by sanctioning Pam’s action as long as it didn’t happen on company property and actually giving Pam lessons in how to throw a punch! This type of situation isn’t unheard of — just this fall, for instance, an employee in Chicago was arrested and charged with simple battery for punching his boss after his boss told him to stop using his cell phone during work hours. Although Michael was the one to suggest that Pam should punch him, and therefore arguably consented (although you can’t consent to a crime), and he really wasn’t hurt by Pam’s slap, he could still bring a claim against Dunder Mifflin related to Jim’s and Toby’s negligence in protecting him and preventing an act of workplace violence. Fortunately, Michael wasn’t hurt … but in any other company, Pam would still be out a job and probably digging into her pockets to settle a battery claim.


5 thoughts on “Double Trouble”

  1. I know it was totally inappropriate, but I loved it when Toby was giving Pam pointers on throwing a punch right in front of Michael.

  2. I loved that too, Suzanne! It was a sad moment for HR, but I can only imagine the personal joy Toby must have felt at anticipating Michael getting punched!

  3. I believe the reason Ryan is still a DM employee is due to Michael’s negotiations with David Wallace when David wanted to buy the Michael Scott Paper Company. Michael’s demands were to get his job back and keep Pam and Ryan as sales employees. David, unfortunately, has never demonstrated much of a spine when it came to issues with Michael. Causes one to wonder how David got as high up as he did. Ah, but then, it’s just a TV show!

  4. Great blog. I’m not so certain that Pam would be spending her own cash. It is likely that the homeowners would defend under a reservation of rights then just make an offer to make it go away. At least that is what we would have done back in the days I was a cube dweller managing claims.

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