General Talbot Should Not Grab a Major’s Face

March 28, 2015

Pretty sure General Talbot on Agents of SHIELD will be subject to an internal affairs investigation due to 1) rounding up all the female officers and enlisted service members and 2) unwanted facial touching of a servicewoman. Let’s discuss the legal issues from “Love in the Time of HYDRA.”

The General likely would be cleared of charges, but his wife being angry for not being diverted away from a dangerous situation, followed by the General pulling a gun on her and told to lie on the floor with lunch, would seem mild compared to what the Air Force would do to him.

The face-changing Agent 33 had invaded General Talbot’s base. Talbot recognized his base had been compromised after waiving Agent 33 impersonating his wife passed security (a violation of National Security Protocol) and then being called by his wife on the phone.

Note to all spouses: If your life partner makes you realize a face-changing spy has invaded your office, warn them to stay away. No one should die on Taco Tuesday.

Talbot’s solution to a female spy being on base was to sequester all of the women in order to find the spy. After interrogating each woman in public, Talbot grabbed the cheek of a Major, thinking that Air Force officer was the spy.

Bad, bad, bad, idea.

The spy actually had killed a male soldier her height and taken his uniform. There was no reason to round up only women, when the search should have focused on height and weight of people: Agent 33 could change her face; she was not a shape-shifter would could increase or decrease her mass.

Could the Air Force Major prevail in a hostile work environment claims against General Talbot? She would have to prove the following:

(1) That she belongs to the protected group;

(2) That she was subject to unwelcome sexual harassment;

(3) That the harassment complained of was based on sex; and

(4) That the harassment complained of affected a term, condition, or privilege of employment in that it was sufficiently severe or pervasive to alter conditions of her employment and create an abusive working environment.

Maddin v. GTE, Inc. (M.D.Fla. 1999) 33 F.Supp.2d 1027, 1031, citing Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1557 (11th Cir.1987).

The Major could prove 1) she is a woman and thus belongs to a protected class based on gender; 2) she was subjected to unwelcome sexual harassment by the cheek grabbing (definitely battery); and 3) the harassment was because she was a woman.

The second element is somewhat problematic: the General definitely violated her person by grabbing her cheek, thinking it was a mask. Trying to unmask a spy is not on its face sexual harassment of a possible suspect, but it is definitely battery.

As one case explained, face touching “is not the type of physical conduct that is so egregious that even one instance would make a reasonable woman experience her workplace as hostile.” EEOC v. Int’l Profit Assocs. (N.D.Ill. 2009) 654 F.Supp.2d 767, 809.

It would appear the hostile work environment claims would fail because one incident of face touching (in order to unmask a spy) would not be egregious conduct to create a hostile work environment given the extreme situation.

This would not mean the General is safe from a Congressional Investigation. The military and Congress take a dim view on assault of service members, so the General better be prepared to explain how he was trying to find a spy that had killed two other military personnel.

Do Not Ask "Do You Like Boys or Girls" in a Job Interview

Josh Gilliland

October 14, 2014

Gotham once again teaches a great legal lesson, this time with how to conduct a job interview. Fish Mooney separately interviewed two different female singers to perform in her nightclub. Fish bluntly asked each woman whether they like “boys or girls,” to which both answer “boys.” At that point, Fish asked each woman to “seduce her.”

There are questions you should not ask on a job interview. Sexual orientation is a big one. For example, California law states it is unlawful “for an employer, because of . . . religious creed . . . or sexual orientation of any person . . . to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” Erdmann v. Tranquility Inc.,155 F. Supp. 2d 1152, 1159 (N.D. Cal.2001), citing Cal. Gov. Code § 12940.

New York has similar employment prohibitions:

It shall be an unlawful discriminatory practice:

For an employer or licensing agency, because of an individual’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.

NY CLS Exec § 296(1)(a)

Fish crossed a second interview “no no” in asking each women to seduce her as part of the interview. This easily could be found to be a “quid pro quo,” in that a sexual favor was asked in exchange for employment. This is a form of sexual harassment and is prohibited by law. Both women could demonstrate a claim of “quid pro quo,” because both suffered an adverse job consequence as a result of refusing the unwelcome sexual advances of a supervisor. Reed v. Hunt Corp., 2003 U.S. Dist. LEXIS 20774 (S.D. Ind.Nov. 11, 2003). The “adverse job consequence” each suffered was not only NOT getting the position because of merit, but being asked to fight each other.

It should go without saying that even in a cutthroat job market, no prospective employer can ask job candidates to have a death match. Moreover, even though this is Gotham, you cannot hire nightclub singers to seduce and kill someone. Questions relating to employment performance are fair game, but you cannot ask job candidates about their sexual orientation and then a seduction demonstration.