Jesus Take the Wheel

Litigation Value: One “Tranny Claus” = $0; One Disgruntled Jesus Impersonator = $0; Settlement Checks for Offended Employees = $50,000; Getting an XBox from Santa = Priceless.

It’s the holiday season again and time for our friends at Dunder Mifflin to trim the tree and try to stay off the Naughty List. Some were more successful than others (i.e. Michael, as usual). While Jim and Dwight “the Christmas Elf” attempted to bring the office closer together by having everyone trim the rather short artificial tree, Michael exhibited some of the worst behavior since he pretended to hang himself in front of frightened trick-or-treaters.

The episode opened with Phyllis finally achieving her long-time goal of playing the coveted role of the office Santa. Unfortunately, Michael did not get the memo and arrived wearing a Santa suit as well.  Instead of graciously allowing Phyllis to be Santa in peace, Michael instead became highly upset and berated Jim for allowing a woman to play the role. Michael bitterly called Phyllis “Tranny Claus” and was intent on ruining the holiday party for everyone else. When it came time for the office employees to sit on Santa’s lap, Michael quickly grabbed a chair to hear everyone’s holiday wish list. However, Michael crossed the line when he announced that he was a man, unlike Phyllis, and said, “Sit on my lap and there will be no doubt.” This is far from the first time that Michael has made sexually suggestive remarks to his subordinates. Who could forget Michael telling Phyllis that she was giving him a “boner”?

Michael’s conduct exposes Dunder Mifflin to potential liability in a sexual harassment lawsuit. Courts have held that, where a supervisor engages in harassment that results in a tangible employment action, the employer is strictly liable for the conduct. If there is no tangible employment action, the employer is not liable if it can show that it used reasonable care to prevent and promptly correct the harassment and that the complaining party unreasonably failed to take advantage of any preventative or corrective opportunities by the employer.

A tangible employment action usually inflicts direct economic harm and, in most cases, can only be caused by a supervisor or other person acting with the authority of the company. Thankfully, Michael unsuccessfully attempting to steal the role of Santa from Phyllis is not a tangible employment action, so strict liability is unlikely.  However, Michael’s long history of inappropriate behavior could very well result in a hefty damages award against Dunder Mifflin should its employees decide to file suit. I doubt a jury would be impressed with Dunder Mifflin’s harassment policy after hearing Pam testify that harassment training usually involves everyone sexually harassing her for fun that day.

After making a sexually suggestive remark to his employees, Michael then continued his naughty conduct by turning his Santa costume into a rather plump Jesus costume. Although Angela was enthusiastic about Jesus’s appearance at the holiday party, the other employees were not pleased with hearing that they were going to “H-E-L-L-Double Hockey Sticks!” I am sure corporate (whatever is left of it) would not be happy to learn about Michael’s antics or the potential liability for religious discrimination.

Under Title VII, a plaintiff establishes a prima facie case of hostile work environment based on religion by demonstrating: (1) that s/he is in a protected class; (2) that s/he was subjected to unwelcome harassment; (3) that the harassment was based on religion; (4) that the harassment had the effect of unreasonably interfering with the plaintiff’s work performance by creating an intimidating, hostile, or offensive work environment; and (5) that the employer was liable for the harassment.

Although Michael’s one incident of poor behavior may not rise to the threatening or humiliating level of severe conduct required to create an objectively hostile or abusive work environment under Title VII, we all know that this is probably not the first (or last) time Michael has gotten out of hand.

The moral of the story is to stay on Santa’s Nice List and try not to quibble with coworkers about whose belly gets to shake like a bowl full of jelly at this year’s holiday party. Otherwise, Phyllis might have to get Bob involved, which opens up all sorts of workplace violence issues.

[hulu:http://www.hulu.com/embed/-4l55MLaQpDlANNAj42oOw/0/82/i5]

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  Kristin Starnes Gray, FordHarrison
  Kristin Gray represents management in labor and employment matters in the courts, in arbitration, and before government agencies, including the EEOC, the U.S. Department of Labor, the South Carolina Department of Labor, the South Carolina Human Affairs Commission, and other agencies at the federal, state and local level. She concentrates her practice on representing management in matters related to employment issues including discrimination, harassment, and retaliation claims under Title VII, the ADA, the ADEA, and state law. Kristin also assists management with issues related to HIPAA compliance, employment policies, handbooks, the FMLA, contracts, separation agreements, wage and hour, and other workplace matters. Find her on LinkedIn here.