Sexual hazing in the workplace is not enough for sexual harassment case

You learn something new every day. Today, you will learn that, in some workplaces, workers will tea-bag each other. This a form of sexual harassment. Unfortunately for the plaintiff who brought this case, the tea-bagging does not give him a lawsuit.

The case is Hoit v. Capital District Transportation Authority, a summary order issued on March 30. On his last day of work, coworkers assaulted and tea-bagged him. In a footnote, the Court of Appeals tells us about tea-bagging: "This Court has defined tea-bagging as 'a hazing act—indeed a form of sexual assault—during which the victim is pinned down on the floor by several [people] while another [person] rubs his genitalia in the victim’s face.'” Plaintiff claims his coworkers:

pinned him to the floor “dry humped” him by “rubbing his hips and groin on [Hoit’s] back, while making humping noises and telling [Hoit] to ‘Let it happen. Let it happen.’” Hoit yelled at Clanton to get off of him and physically struggled to get away. Then Baez, a foreman for the mechanics, came running over, pulled his pants down and kneeled over Hoit’s head in his boxer briefs, placing his clothed testicles on Hoit’s head. Clanton continued to hold Hoit down during the Incident. Meanwhile, Mancini, a foreman for the service technicians, recorded a video of the Incident on his phone. After the Incident, Hoit worked the remainder of his shift, taking a cigarette break with Clanton and a meal break with Baez and Mancini.

The case was dismissed for failure to state a claim under Rule 12, and the Court of Appeals (Winter, Hall and Cote [D.J.]) affirms. The case is over.

Plaintiff loses because he sued under the New York State Human Rights Law, which only allows you to sue the employer if it condones, encourages or approves the offending conduct. It is not enough for plaintiff to argue that management should have known about the rumors of the sexually explicit work environment. These rumors mostly involved coworkers exposing themselves at work and other "sexual harassment stuff." The employer did not receive any complaints about this, except for something that happened in 2009, which the CDTA handled appropriately.

Plaintiff also sues Clanton individually under Section 1983, which provides relief for constitutional violations under the Equal Protection Clause. Plaintiff cannot win that claim, though, because Clanton did not sexually harass plaintiff "under color of state law," meaning, he was not "misusing some power that he possessed by virtue of state law." Supreme Court and Second Circuit authority holds that Section 1983 does not cover the "personal pursuits" of government officials, such as "hazing or horseplay."