The Web Series Research: Case Studies of What Not To Do At Work

Let’s be clear about one thing: my brother Gabe Diani is in Research, so this is a mild tale of nepotism.

Each episode of Research could provide law professors hours of exam questions for law students.  It should give Employment Lawyers nightmares that result in them carrying whiskey flasks to client meetings. Uncontrollable laughter is also foreseeable.

Let’s review the highlights of the main legal issues presented in the first two episodes.

Episode 1: The Pilot

Episode 2: Secretariat

Let’s Poison a Test Subject

Taking a room full of test subjects and telling them one might drink poison raises many legal issues. The obvious is murder, because a poison is being used to kill a person (California Penal Code section 189). This demonstrates malice aforethought to kill a test subject and clearly is first degree murder, regardless of whether or not a specific test subject is the target of the poison.

There would also be significant issues of intention inflection of emotional distress by telling test subjects that there is a poison in one of the test cups. While there would need to be waivers of liability to participate in any research study, one cannot willfully try to torture people. There is simply no waiver of liability for torture.

Taylor’s Sexual Harassment of Dave

An attractive woman randomly kissing a supervisor might be common on late night cable, but it is sexual harassment in the real world. To prove sexual harassment, Dave would must demonstrate the following:

1. That Dave had a business, service, or professional relationship with Taylor; and

2. That Taylor made sexual advances to Dave.

Alternatively, Dave could prove under California law that:

1.  Taylor engaged in verbal, visual, and physical conduct of a sexual nature;

2. Taylor’s conduct was unwelcome and also pervasive or severe;

3. Dave was unable to easily end the relationship with Taylor; and

4. That Dave has suffered or will suffer the violation of a statutory or constitutional right as a result of Taylor’s conduct.

5-30 California Forms of Jury Instruction 3065.

Contrary to Taylor saying it was not sexual harassment when a “woman does it,” Taylor could be found to have sexually harassed Dave, because the law is not limited on which gender can sexually harass the other. (The law even provides protection against same gender harassment, See Singleton v. United States Gypsum Co., 140 Cal. App. 4th 1547, 1548 (Cal. App. 2d Dist. 2006)).

There was uninvited kissing and verbal comments. Moreover, Taylor waiting in the conference room boarders on stalking Dave. All of these facts would show a repeated pattern of harassment of Dave or at a minimum stalking.

Job Posting on JDate

Research also raises issues of religious discrimination by posting a job ad on JDate, showing a preference for Jewish employees at the expense of qualified non-Jewish candidates (not to mention a high degree of cultural insensitivity). The California Constitution specifically prohibits disqualifying a person from employment based upon their religion. Cal Const, Art. I § 8.

There is an exception to the above, because a religious employer has discretion to select employees who will not interfere with their religious mission. Silo v. CHW Med. Found. (2002) 27 Cal.4th 1097, 1108-1109 applying U.S. Const., Amend. I; Cal. Const., art. I, § 4 to Cal. Const., art. I, § 8. As the team on Research has nothing to do with a religious mission, this hiring practice could result in a lawsuit.

Physical Battery by Dr. Rust

Dr. Rust slapped Dave across the face. There is also facial touching of both receptionists.

Battery under California Penal Code section 242 is “is any willful and unlawful use of force or violence upon the person of another.” Dr. Rust slapping Dave would unquestionably be battery, resulting in civil and criminal liability. It is also a terminable offense from employment.

The touching of both receptionists’ faces would be unlawful touching as well. While not the same physical force as a slap, it is extremely creepy behavior that could result in a lawsuit.

This says nothing of giving Kate face melting acid.

Who Handled the Blood Sample?

Performing blood draws and the storing of blood is a heavily regulated profession. (See, Cal Bus & Prof Code § 1242 and Cal Health & Saf Code § 7150.10). The team at Research could not simply leave a large bottle of blood out in the open brought in by a test subject.

Sexual Discrimination in Hiring

Grant’s mandate for Dave to hire a “hot chick” would be several forms of sexual discrimination. First, it eliminates all qualified men who applied for the position. Second, it discriminates against women based solely on appearance, whether or not they are skilled to do the job. Third, it invites unlawful future sexual harassment of the new hire. The mandate is a lawsuit waiting to happen.

There Are Even More Issues

Research is a law professor’s dream on possible legal issues. These are only the first two episodes and just the tip of the iceberg on possible liability for the fictional company.

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