Employment Law Daily Single act of 'tea bagging' male worker lands employer in hot water
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Friday, July 22, 2016

Single act of 'tea bagging' male worker lands employer in hot water

By Marjorie Johnson, J.D. A male employee plausibly alleged that he was subjected to an actionable hostile work environment when a coworker pinned him to the ground while his supervisor placed his bare genitals on his head to "tea bag" him as a "going away present" on his last day on the job. Denying in part the motion to dismiss his civil rights claims, a federal district court in New York found that a jury could find from his alleged facts that the conduct was gender-based and sufficiently severe, despite being a single incident (Hoit v. Capital District Transportation Authority, July 19, 2016, Suddaby, G.). The employee worked as a mechanic for Capital District Transportation Authority (CDTA) and sued based on the single incident from his last shift before beginning a new job at another agency. Specifically, he claimed that while he was repairing a bus part, his substantially larger male coworker grabbed him by his shoulder, chased him, pinned him to the ground on his stomach, and forced his arms behind his back while he screamed to be let go. His supervisor approached them, laughing, and told the employee that he had a "had a going away present for him." His supervisor then dropped his pants, got on his knees in front of the employee’s head, and placed his testicles and penis on the back of the employee’s head, purportedly to "tea bag" him (a sexual "hazing" act). His supervisor stayed in that position for several minutes, laughing and allowing other employees, including a second supervisor, to take pictures while the employee unsuccessfully kept trying to break free. The offenders eventually released him and he angrily walked out of the garage. Gender-based conduct. Allowing his hostile environment claims to proceed against certain defendants under the Equal Protection Clause and the NYSHRL, the court found that he plausibly alleged harassment based on gender. He argued that the court should infer that conduct was motivated by sexual desire, that tea-bagging is a gender-specific act usually performed on males, that the offenders primarily targeted male employees, and that defendants applied a gender stereotype against male employees. Notably, he did not actually allege any of those facts in his pleadings, but the court found that he still alleged facts from which a jury could reasonably infer that the defendants primarily targeted male employees. More specifically, he alleged that the offenders had tea-bagged other male employees, that the supervisor had exposed himself to at least one other male employee, and that the two assaulted another male employee by tackling him and pretending to "dry hump" him. These alleged instances of sexual harassment targeting male employees allowed the court to find, at this early stage, that the employee adequately alleged conduct motivated by his gender. Single incident enough. Rejecting the defendants’ assertion that the harassment was merely "horseplay," the court also found that he plausibly alleged a hostile environment based on a single incident. He contended that he was restrained against his will, despite his protests that he be let go, while his supervisor placed his testicles and penis on his head. And though the defendants also argued that his terms and conditions of employment were not affected because the incident occurred on his last day of work, an adverse employment action was not a required element of a HWE claim. Plus, the conduct could automatically be imputed to CDTA for purposes of his NYSHRL claim since two of the individuals were in supervisory positions. "Observing" supervisor acted under color of state law. The court also denied the second supervisor’s assertion that the employee’s hostile environment claims against him under the Equal Protection Clause should be dismissed since he was not acting under the color of state law. The employee alleged that he failed to supervise the coworker (his subordinate) when the coworker participated in sexually assaulting the employee and didn’t intervene to prevent the assault. But his constitutional claims against the coworker were dismissed since his actions in restraining the employee were a personal pursuit unrelated his duties as an employee of CDTA. Other claims tossed. The court dismissed the employee’s Fourth Amendment claim for false imprisonment and excessive force; the objectionable conduct occurred outside of a criminal investigation or other form of governmental investigation or activity. Here, tea-bagging the employee was done for purely personal reasons unrelated to any governmental purpose. The court also dismissed his claims against several other supervisors who did not directly participate in the sexual assault, but who he claimed condoned a custom of pervasive sexual harassment in the workplace, failed to appropriately supervise and train their employees regarding sexual harassment, and failed to discipline the coworker and his supervisor despite knowledge of repeated prior misconduct. He did not specifically allege that these supervisors were aware of any past misconduct or the incident in question, however Instead, he alleged only they "knew or should have known" about the past misconduct "given the pattern and practice of sexual conduct engaged in" by his supervisor other CDTA employees, the highly publicized and successful lawsuits, and harassment grievances filed against CDTA employees." Because he failed to allege facts plausibly suggesting that these supervisors were aware of any facts that would have made them aware of potential misconduct, they could not have been deliberately indifferent or grossly negligent regarding future misconduct. He also failed to allege facts suggesting that they created a policy or custom under which unconstitutional practices occurred.

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