There are a great many question arising from the fact pattern in Doe v. KIPP NY, a case decided last August that just found its way onto Eugene Volokh’s radar with a rather salacious title. How did the video get into the hands of students? Why would the teacher use a district-provided cellphone to take video of her pleasuring herself? Why did she take video at all? If the plaintiff continued her employment as a junior high and high school teacher, would her students have something other than education on their minds such that she would have difficulty teaching?
[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.
But the spicy questions aside, one of the more interesting legal questions is whether this constitutes discrimination under New York’s Human Rights law, prohibiting “discrimination on the basis of race, color, sex, sexual orientation, religion, and crime victim/domestic violence victim survivor status, and retaliation.” The plaintiff’s contention is that she was the victim of discrimination based on sex and sexual orientation.
[P]laintiff argues, inter alia, that the pleading standards for claims brought under the NYSHRL and NYCHRL are “materially looser” than “the trans-substantive plausibility standard of the Federal Rules of Civil Procedure[.]” Plaintiff argues that she has pled sufficient allegations of protected status. Plaintiff alleges she is South Asian (Race), a female (Sex) of brown skin (Color), heterosexual and engaged in self-sexual – auto-erotic – activity (Sexual Orientation), of Hindu faith (Religion), and who experienced an intimate sexual video of her being disseminated without her consent.
In denying the motion to dismiss, the court found that Doe was a member of a protected class based upon her race, her skin color and sex.
The Court finds that the plaintiff has stated a legally sufficient third cause of action for violation of the New York State Human Rights Law, NY Exec. Law §290 et. seq. Sex Discrimination given that she asserts that she was a member of protected class as a female, and that her sex was a motivating or other causally sufficient factor in defendants’ actions, and the defendants’ actions reflected bias because of the stigmatizing of female sexuality.
While it’s a stretch that her race or skin color was a causal factor, given the video, the argument that her termination bore a causal connection to “stigmatizing of female sexuality” is quite strong. Of course it did, but is this a bad thing?
The Court finds that the plaintiff has stated a legally sufficient fourth cause of action for violation of the New York State Human Rights Law, NY Exec. Law §290 et. seq. Sexual Orientation Discrimination 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.
Whether heterosexuality is involved when the act in question is “self-sexual (auto-erotic) activity,” which one would assume crosses all potential orientations, is dubious, but the holding that heterosexuals are a protected class raises a curious problem. If heterosexuals are protected, then what sexual orientation isn’t? And if all are, then everyone can claim discrimination for any adverse action based on sexual orientation. Then again, if discrimination is unlawful against homosexuals and bisexuals, why not heterosexuals? Is heterosexuality any less an orientation than any other? If it’s wrong for one, why not all? Or are the cracks in antidiscrimination laws beginning to show as they are applied promiscuously, since every person has a race, skin color and, to at least some extent, sexual orientation?
*Tuesday Talk rules apply. Keep it clean.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
If we accept her claim at face value, she made a porn video on her work phone, and then loaned it to a student. Even if we leave out the sexual component; anyone who would do something so mind-numbingly stupid probably shouldn’t be employed as a teacher.
I’ll be appalled if this case gets any traction. She obviously can’t work as a teacher at that school under the circumstances, and they would be negligent if they didn’t fire her. Her claim of protected status is a textbook case of clutching at straws.
The NYS Human Rights law would enable anyone to claim discrimination of a protected class, but for the requirement that it be a motivating or causal factor. The judge glossed over that detail, as if the causal factor wasn’t that she made a masturbation video on her school phone and then gave it to her student.
Even given the low threshold for overcoming a motion to dismiss, this was pretty bad.
From the description it’s not clear the path (did she make it on own phone that airdropped to school phone given reference to personal property, or on school phone that was lent, or school phone that accidentally airdropped, etc.).
When I had first seen the story at Volokh I had first thought issue was going to be that either a similarly-situated male teacher, or female lesbian teacher, with an accidentally-revealed video hadn’t been dismissed (i.e. that plaintiff here was treated more harshly).
I wondered if you were going to go with Jackson Brown’s “Rosie”…
Another possibility is John Mayall’s “Wish I Knew A Woman,” but the post really called for a tune with a feminine point of view.
Speaking of John Mayall, it’s Twofer Tuesday:
Yes, all classes, even those in the majority, must be protected. Whether or not such discrimination happened in this case has not yet been decided. All that has been decided is it is possible that the Defendants discriminated against her because she is straight. Not the best facts in this case, but there are plenty of possible scenarios or contexts where a person could indeed be discriminated against for being straight or white or male or Christian and so forth.
A notice pleading jurisdiction combined with the kitchen sink approach means some weird shit’s gonna get through only to get knocked down harshly later. Anyone can claim discrimination, not everyone can prove it.
But is she Left Handed?
Correct me if I’m wrong, but isn’t pretty much an established principle that nothing you do on an employer provided device is private? And given she is a government employee with government property as well? Does this not automatically mean any claim to “privacy” in this instance must fail on it’s face?
Reading between the lines, it also seems to me that this may very well be a case of grooming where she “accidentally” left the video open in the recent app history as a discreet way of showing it to the student. Who then, of course, shared it with everybody as teenage boys will do. And this lawsuit is a way of trying to cover her tracks and muddy the waters in regards to whatever legalese term involves trying to entice an underage student into a sexual relationship.
Or feel free to discard this post if it’s completely batshit crazy.
I am correcting you because you are wrong. Use of an employer owned device compromises the employee’s right of privacy, but does not negate the right. An employer has a right to monitor material on an employer issued device for a legitimate purpose. But the employer does not have the unbridled right to publicly disseminate, or negligently permit dissemination of, embarrassing or salacious material to students, other teachers or the public at large that exposes an employee to public ridicule and a hostile work environment. From the court’s holding: “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.” That implies that the employer may have been negligent or complicit in creating or maintaining a hostile work environment in violation of the NYS Human Rights Law.
I haven’t read the complaint. But I can envision a scenario where male administrators may have sent misogynistic emails or texts making fun of the teacher that could amount to sex gender discrimination or evidence of a hostile work environment. The judge may have been right to deny the motion to dismiss and let discovery proceed to uncover whether the teacher was terminated in retaliation for complaining about a hostile work environment that her employer encouraged or condoned. Remember, this was a motion to dismiss, not a judgment on the merits.