Masturbation Discrimination

From N.Y. trial court judge Lisa Headley in Doe v. Kipp New York, Inc.; the decision was handed down in August, but I just noticed it because an appellate decision earlier this month allowed the case to proceed under a pseudonym:

[P]laintiff commenced this action a year after her employment as a teacher at KIPP middle school and high school was terminated following the dissemination of a video to students depicting plaintiff in a sex act that was saved on her KIPP-issued cellular phone (the "Video"). On June 3, 2022, plaintiff alleges she became aware of the video dissemination, when students brought it to her attention that the video had just been "airdropped" to certain students at KIPP. The plaintiff maintains that the video was taken on personal time and personal property and was potentially accessed and disseminated by students and others, without her consent.

The incident was reported to KIPP administrators, … who investigated the incident. The KIPP administrators determined that the video either may have been disseminated from a KIPP student to whom the plaintiff loaned her phone, or as the plaintiff depicted, that a student airdropped the video to other students. On June 16, 2022, the plaintiff filed a police report regarding the unauthorized access and dissemination of said video, and then on June 24, 2022, the plaintiff was terminated from her employment.

Plaintiff sued alleging many sorts of discrimination, but one in particular seemed a bit unusual:

The Court finds that the plaintiff has stated a legally sufficient fourth cause of action for … Sexual Orientation Discrimination [under New York state law] given that she asserts that she was a member of a protected class as a heterosexual and engaged in self-sexual (auto-erotic) activity, and defendants took adverse action against plaintiff, including terminating her employment, and her lawful expression of her sexuality was a motivating or other causally sufficient factor in defendants' actions….

Among various other claims, the court also allowed a claim to go forward based on New York law banning nonconsensual dissemination of nude or sexual depictions of a person; the law provides,

Any person depicted in a still or video image, regardless of whether or not the original still or video image was consensually obtained, shall have a cause of action against an individual who, for the purpose of harassing, annoying or alarming such person, disseminated, or published, or threatened to disseminate or publish, such still or video image, where such image:

1. was taken when such person had a reasonable expectation that the image would remain private; and
2. depicts (i) an unclothed or exposed intimate part of such person; or (ii) such person engaging in sexual conduct, as defined in subdivision ten of section 130.00 of the penal law, with another person; and
3. was disseminated or published, or threatened to be disseminated or published, without the consent of such person.

The court reasoned:

[T]he plaintiff argues she sufficiently pled a claim …, given that she was depicted in an intimate video while she was in the act of masturbation; she had a reasonable expectation that this image would remain private; learned through others that several teachers and administrators with no legitimate need to know about the video, much less see the video, either knew about the video or had viewed it; and that their awareness and access could only have been achieved through the defendants' conduct. Plaintiff also alleges that the defendants disseminated the video images without her consent and permission, and beyond the scope necessary to conduct defendants' internal investigation into the matter. Plaintiff alleged the defendants had no "legitimate" purpose for disseminating the video and that their conduct was designed to cause her "harm." …

[The plaintiff also argues that she] pled she was aware that the images were shared beyond any "legitimate business purpose" to other teachers and administrators within the school system…. [T]he Court finds that the plaintiff's Complaint alleges a legally cognizable claim  ….

Comments

[Bubba Jones]

KIPP didn't have an IT policy that banned this?

They didn't go after Doe for distributing porn to kids?

This seems like a situation for a mutually agreeable separation.

[Longtobefree]

WHAT!!??

Legal protections for a straight person? Inconceivable!
This could only get worse if it turns out she is White!

[Frank Drackman]

Jeezo-Beezo, where were these teachers when I was in Screw-el??

[TwelveInchPianist]

Masturbating next to big plastic phones with dials that didn't capture video?

[Frank Drackman]

Tell me about it, I remember 7th grade math class with one of those giant Slide Rules above the chalk board (and they used actual chalk)

[Martinned2]

What does her being straight have to do with anything? It was a solo video... (I think. The court is so coy that it's impossible to be sure.)

[CJColucci]

The jokes write themselves.

[John F. Carr]

As I understand the post, she put a personal picture on her work phone. Government employee orientation should include a session where the instructor says we can snoop through your phone at any time and share anything that isn't work-related. Meet Jeff, our lonely single IT department who can't get a girlfriend. He'll be checking for compliance. Some of the training session is a bluff. Some of it. Ideally the school would have a team of eunuchs to do the real checking in a shielded clean room.

[TwelveInchPianist]

I see this as an unsympathetic plaintiff with what should be a dead-bang loser of a claim, but the judge sure seems to think other wise.

1. She probably shouldn't have been granted pseudonymity.
2. Reasonable expectation of privacy on her work phone?
3. Punishing her for allowing pictures of her masturbating to come into the possession of children is discriminating against her because she's straight? AYFKM?

[wvattorney13]

I generally agree with all three of your points, but to be a bit charitable there is some nuance about something being "on" a work phone. She could have had a Dropbox or OneDrive app that linked back to her personal data which this student accessed and thus pulled this picture from her personal data onto her work phone.

In other words, is something "on" your work phone when someone else accesses a remote server and brings it onto the phone?

To analogize it to pre-digital data, what if she asked a student to go home and get some pictures from the field trip that were on her kitchen table, but the student went into her bedroom, retrieved a picture like this and included it with the field trip pictures and brought them all to school?

As far as sexual orientation discrimination, that is a head scratcher. Unless I'm not up to speed and gay people don't masturbate, it seems that her orientation had nothing to do with this at all.

[Speaking for normal people]

I say kick their assss out the door at warp speed. That is a disgusting person and ergo I am disgusted

[River]

What on earth was a personal sexual video doing on an employer-issued device? There is zero expectation of privacy on an employer issued device.

[John F. Carr]

On the illegal sharing claim, proof that the video was shared "for the purpose of harassing, annoying or alarming" may be hard to come by. She's arguing that there was no good reason to share it so the motive must have been harassment, etc. But guys share videos of naked women without caring how the naked woman feels.

If the revenge porn claim fails, as I think it should, the court left her with a claim for intentional infliction of emotional distress.

[Stuart]

From the headline I would have thought this was a case for Josh.

[Harvey Mosley]

I don't understand why she's so upset. After all, she did it to herself.