A New York Court recently addressed a novel question: whether a female teacher who was fired after a semi-nude picture of her became available to her employer could assert a viable equal protection clause against the school district.
The plaintiff was a probationary middle school teacher in a public school. She was terminated after the school district came into possession of a semi-nude picture of her. The picture in question was a selfie that plaintiff had taken on her cell phone and sent to a former boyfriend, who was also a teacher in the same school district. The Plaintiff alleged that she had taken the picture herself, sent it to her then-boyfriend several years ago, and that he was the only person she had sent the picture to. The school district told plaintiff that they believed her when she denied sending the photo to any students. Despite this, the plaintiff was immediately suspended from teaching.
The school district subsequently fired the plaintiff, and unambiguously stated that she was being terminated because of the photo depicting her as a “topless female.” Adding fuel to the fire, the school superintendent commented to the plaintiff that she would have received tenure, but that she had to be fired due to the photo portraying her “female breasts.” The male teacher who received the photo was never disciplined. It is unknown how the photo came into the possession of the school district.
The plaintiff brought a lawsuit against the school district alleging a Fourteenth Amendment equal Protection Violation based upon gender discrimination. The Court phrased the fundamental question raised by this claim as “Can a school district treat a female teacher’s breasts differently than a male teacher’s, at least in a school setting?”
Though noting that the disparate treatment between male and female breasts may survive equal protection challenges (for example, in the context of statutes banning nudity in public places), the court held that the plaintiff had alleged a viable equal protection claim. The Court noted that the “proliferation of individuals sending intimate images to one another” has “become so common in our society,” and that the teacher did not public distribute the image of herself. Instead, it was a private image sent only to her then-partner. This fact, coupled with the school district’s unequivocal explanation of the termination as being solely for the existence of the picture, leads to a prima facie equal protection violation.
The lesson for government employers is simple: if you want to avoid expensive litigation, do not explicitly reference an employee’s protected status (gender, race, etc.) when you are terminating them. And, generally speaking, it’s unwise to terminate an employee based upon an issue in their personal life that has no bearing on their job or responsibilities.