Got “Dick Pic’d”?
As WIRED magazine recently acknowledged “[d]ick pics are everywhere, and nobody knows what to do about them.” For those who are unfamiliar with this recent phenomenon, there is a growing trend of individuals sending unsolicited pictures of their genitalia to strangers, often via the iPhone “Air Drop” functionality. This activity—recently coined as a form of “cyberflashing”—has been reported in a variety of public places, most notably in crowded subways during daily commutes, or at schools. Instances of “cyberflashing” have also been reported in the workplace, and even during job interviews.
While some states are responding to this phenomenon by criminalizing the sending of “dick pics,” courts have interpreted existing laws – including employment laws – as already prohibitive of such actions. For instance, one district court held that receiving an unsolicited “dick pic” from a job interviewer constitutes “a form of harassment” that can expose employers to Title VII liability, which may entitle the employee to emotional distress damages. (Stewart v. Durham (S.D. Miss. Feb. 9, 2017) No. 3:16-CV-744-CWR-LRA, 2017 WL 548994, at *2.) While there is a lack of California case law addressing this issue, California employment laws generally provide employees with protections that exceed those of Title VII, and therefore California courts are likely to also consider “cyberflashing” activities to be forms of harassment.
While the recent “cyberflashing” trend may quickly grow out of style as states pass laws criminalizing such behavior, employees should know that such activities may be considered a form of sexual harassment that is currently illegal under California employment laws. Similarly, employers should be aware of their possible legal exposure if this activity is occurring among their employees, and should develop policies on how the company will respond to any reports of such behavior, and what the company will do to prevent such behavior. Attorneys well-versed in employment issues can assist both employers and employees in navigating the evolving waters of the impact that “dick pics” may have in the workplace.
Dorothy Yamamoto is an associate who handles employment litigation and counseling at Dhillon Law Group Inc.
Ellis, Emma Grey. “WIRED Takes a Good Hard Look at Dick Pics.” August 14, 2019. https://www.wired.com/story/psychology-dick-pics/.
Id.; see also Poloni, et. al. “Cyberflashing in the new iPhone safety threat as AirDrop used to share porn, explicit content.” May 11, 2019. https://www.abc.net.au/news/2019-05-12/cyber-flashing-porn-sent-to-iphones-using-airdrop/11092974