As an employment lawyer, part of my practice involves training employees and supervisors on employee handbooks. Most often, my training focuses on respect in the workplace.
During these sessions, I employ many techniques to discourage the workforce from engaging in behavior that could create a hostile work environment. Usually, I’ll put it like this:
“If you would feel uncomfortable sitting in a witness box while having to explain your behavior to a federal jury, then it’s not something that you should do in the workplace.”
But, now, thanks to this recent decision from a federal judge in Washington, DC, I have a new one.
Think twice before sexting.
Laverne Battle alleged that Sergeant Kevin Pope, her direct supervisor at the Metropolitan Police Department, sexually harassed her. Specifically, Ms. Battle alleged that Sergeant Pope texted her a picture of his left hand holding his penis.
[Editor’s Note: Bad. But, could’ve been worse]
Ms. Battle produced a grainy color copy of the photograph for the court’s inspection, and sought to compel Sergeant Pope to produce a photograph of his left hand and penis for the purpose of comparison.
The defendant won’t have to produce a penis pic…yet.
As to the left hand, the court granted Ms. Battle’s motion and ordered Sergeant Pope to produce to Ms. Battle and allow the court to review a photograph of his left hand (including thumb and forefinger) held in a similar position as that in the photograph at issue.
As to Sergeant Pope’s penis, the Court made him SnapChat it to Ms. Battle denied Ms. Battle’s request that Sergeant Pope “pose” for “photo-documenting” by plaintiff’s counsel. Ewww!
And the Court otherwise held off on requiring him to photo his penis. Something about “the requested photograph is alone dehumanizing and embarrassing, notwithstanding whether the photograph is ever presented to a jury.”
However, the Court did not dismiss altogether the possibility of another penis photograph. It deferred ruling on Ms. Battle’s motion to compel Sergeant Pope to produce a photograph of his penis until the Court was satisfied that there is no less intrusive alternative to requiring Sergeant Pope to produce a photograph of his penis.
So, what can we learn from this?
Well, I suppose that I’ll have to modify my anti-harassment training deterrent to address both testifying from the witness stand and possibly having to produce a picture of your penis.
Or vagina.
We don’t discriminate here.
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