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Sexual Harassment Claims and Lewd Pictures

Many clients are reluctant to bring sexual harassment lawsuits or pursue hostile work environment cases because of the embarrassing issues that may arise during the course of the litigation. Although you may worry that these issues will involve you, more often they are more humiliating for the harasser.

In a case decided last month (Battle v. District of Columbia), the privacy interests of an alleged harasser were at stake. Laverne Battle claimed that Sergeant Kevin Pope, her supervisor at the District of Columbia Metro Police Department, texted from his cell phone to her cell phone a picture of him holding his penis in his left hand. To buttress her claim, Battle sought to compel Pope to produce a photograph of his left hand and penis to establish that the body part displayed in the lewd picture was definitely his. Pope resisted, arguing that compelling him to submit a photograph of his left hand holding his penis would be "unjustifiably dehumanizing and embarrassing for him". The court agreed with Pope with regard to the penis, but not the hand.

After in camera review of the grainy, poorly-lit photograph at issue, the Court is skeptical of plaintiff's confidence that a photograph of Sergeant Pope's penis would be of any comparative value. Nor is the Court satisfied that there is no less intrusive alternative to requiring Sergeant Pope to produce a photograph of his penis. The Court accordingly concludes that plaintiff's request is too speculative at this point to overcome defendant's privacy interests.

However, Sergeant Pope's salient privacy interests do not extend to his hand, which is routinely subject to public view. Accordingly, the Court will grant plaintiff's motion in part and order Sergeant Pope to produce to the plaintiff and submit to the Court for in camera review a photograph of his left hand (including thumb and forefinger) held in a similar position as that in the photograph at issue.

So the court ordered that Pope must produce a photo of his left hand, including his thumb and forefinger, positioned in the same way as it was in the photo sent to the plaintiff. The photo is to be kept confidential, but still, one can only imagine the embarrassment this entire episode must be causing.

We always remain sensitive to these types of issues which often arise in sexual harassment or hostile work environment cases and strive to maintain as much confidentiality as possible. As for the defendants, though, they are on their own!
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