“Hazing,” a term used on college campuses to describe the subjection of freshmen to humiliating initiation rituals into an organizations such as fraternities or sports teams, is a violation of California law and of the University of California at San Diego Code of Conduct. However, two recent events show that hazing is still either being practiced and/or is being used as a way of excusing sexual assault.

For instance, locally, UCSD officials are investigating whether a fraternity engaged or threatened to engage in hazing of pledges, after a student reported that a fraternity brother threatened him with the “elephant walk,” in which young men walk naked and blindfolded in single file, their hands clasping the genitals of the man walking behind.

And, as the Los Angeles Daily Journal reported last week, a Superior Court judge in Riverside has dismissed an action brought by then 18-year-old Mark Baker alleging that his male co-workers, who had decided to haze him on his next-to-last day at work, in fact sexually assaulted him.

Baker, who worked as a mechanic for Grease Monkey, a franchise specializing in quick auto lube services, alleged in a suit filed in Riverside in December 2007 that his co-workers twice assaulted him: the first time when a co-worker asked him to come down into his lube pit, where co-employees stripped him to his boxers and tossed his clothes into his nearby truck, so that he had to run out in his boxers to retrieve them; the second time by dragging him into the lube pit, putting him in a neck hold, stripping him down to his underwear, which they pulled down to his knees, spraying him with water, and leaving him in the pit with his ankles and wrists tied together until he pleaded for them to let him go.

Baker suffered injuries including bruises, raspberries and a sore esophagus, and viewed his experiences less as hazing than as sexual assault and battery. Consequently, he sued his co-workers for such, while suing his employer for sexual harassment.

Grease Monkey’s owners, however, contended that under California law they could not be liable for “sexual harassment,” arguing that what happened to Baker was “male-on-male horseplay.” Further, aware that California law holds employers strictly liable for abuse by a supervisor, they argued that neither of the co-employees involved was in a supervisory position.

The court agreed with the employer’s contentions and dismissed the action, finding that sexual harassment by co-workers must be persistent, and an employer must have notice of the harassment. Further, although both federal and state law recognize male-to-male sexual harassment, employers are not liable for unforeseen acts of their employees.

The court left intact, however, the suit against the co-worker who it found most at fault. While this meant that Baker could file an action for damages against the worker, practically speaking, he likely stood little chance of recovering such.

Grease Monkey had fired the co-employees upon learning of the incident. But even if it hadn’t, the company would not have had any liability for sexual harassment, because the employer took immediate action upon learning of the incidents. Had Grease Monkey allowed the co-workers to continue working for the company, it would have been liable, as the court would then have deemed the co-workers’ behavior to be foreseeable.