Is a photograph of the backside of a naked woman “nearly identical” to the photograph of the front side of a naked man? Legally, that is.

Only a legal analysis would make that question meaningful or important.  We want to assure you that the Dawg understands that the two photographs in question would not be anywhere close to “nearly identical.”  We would describe the first as “art” and the second as “gross.”  But a federal court in Mississippi was not ready to pass judgment on the issue as a matter of law.

This all has to do with the lawsuit filed by ex-Coach Matt Wallace, who was fired from the Desoto County School District after a picture of him featuring “full frontal nudity” showed up on the Ashley Madison website.  We’ve been writing about this case all week, and today we bring it to a close.

One of Coach Wallace’s arguments was based on sex discrimination.  He claimed that he was treated differently than a female school employee under “nearly identical” circumstances.  Both employees complained that revealing pictures of them were being circulated by other school employees.  Coach Wallace claimed that his ex-wife and her “boyfriend” (that’s how Coach Wallace characterized the relationship) posted a naked picture of him without his knowledge or consent on the Ashley Madison website.  Did I mention this was the ex-wife?

Coach Wallace complained about this as a form of sexual harassment.  The district did not exactly see it that way.  In fact, the district fired the coach, claiming that it did not matter how the picture came to be on the website—the existence of this picture on a website that promotes adultery was sufficient cause, in the district’s view, to terminate the man’s employment.

However, when Samantha Rivera (a.k.a. “the coach’s new girlfriend”) complained that the same ex-wife and the same “boyfriend” had circulated a revealing picture of her, the district took the complaint very seriously.  The court put it this way:

Thus, the school district was presented with two very similar reports of sexual harassment involving a male and a female employee, but it could not have handled them more differently.  Indeed, [the Coach] notes that not only was Rivera not fired, but the school district took her complaint against [the ex-wife’s new guy] seriously, found it meritorious, and ordered him to stay away from her.  This contrasts very sharply with the district’s decision to fire [the Coach] without a public hearing.

That sounds like sex discrimination, but the Coach bears the burden of proving that he was treated differently than a woman under “nearly identical” circumstances.  This is what prompted the court to weigh in on the distinctions between female backsides and male frontsides:

While a jury may well determine that there is a substantive difference between a photograph depicting a female’s nude backside and one showing a male’s full frontal nudity, this is certainly not an issue upon which this court is prepared to make a pronouncement as a matter of law.

So this case lives on.  Coach Wallace has successfully fended off the efforts of the district to toss his case out of court.

Just to recap: this one involves four school employees—a coach, his ex-wife, the coach’s new squeeze and the ex-wife’s “friend/boyfriend,”- a website devoted to violations of the 6th Commandment, and some cell phone pictures.  The judge played it straight out of the legal playbook, dispassionately analyzing the facts and applying the legal standards.  But in Footnote 3, His Honor had to make a few comments:

…this court is not passing judgment regarding the morality, or even good taste, of a married couple taking such a photograph, although it may certainly be regarded as unwise.  Indeed, in this day and age, there is a long list of folks who regret having allowed a significant other to take a nude photograph or video of them.  Further, the court cannot overlook the fact that the actors in this situation drama spent so much time indulging their modeling, photography, and voyeuristic interests, that one marvels that these players had any time left over to inspire the hearts and minds of the young people entrusted to their care.

The case is Wallace v. Desoto County School District, decided by the federal court for the Northern District of Mississippi on March 21, 2018.  We found it at 2018 WL 1413973.