Recent developments in evidence in sexual harassment cases

So, a plaintiff in a sexual harassment case attempts to introduce evidence that the harasser harassed other employees, but not in the plaintiff’s presence, and that the conduct was not directed at the plaintiff.

Can the plaintiff use that information to prove she was harassed? Basically, the plaintiff wants to say, “The defendant is a bad person because he mistreated others; therefore, it is more likely that he harassed me even though he denied doing so.” That’s what’s called “character evidence,” and it’s usually inadmissible.

Except when it’s admissible. The Evidence Code allows for admission of “character” evidence if used to prove intent, motivation, common plan and other things.

Understanding one recent case

Thomas Anton was a lawyer. Lorraine Pantoja was a member of the staff. Pantoja alleged Anton touched her inappropriately, used slurs and profanity, and engaged in other conduct amounting to sexual harassment. Anton denied engaging in those behaviors.

Pantoja’s lawyers attempted to introduce other female employees’ testimony that Anton engaged in similar conduct toward them. Anton successfully had that conduct excluded as character evidence. But Pantoja’s lawyers argued that evidence was necessary to prove Anton’s intent. A jury decided in favor of Anton. Pantoja appealed.

The court of appeal reversed the defense verdict and judgment. The court decided that the trial court erroneously did not permit “me too” evidence to prove Anton’s anti-female intent. The evidence also was admissible to impeach Anton’s denials. A significant issue was whether Anton used profanity “at the situation” or directed toward females.

This case is significant for a few reasons:

  1. The appellate court’s discussion of intent suggests that the plaintiff must prove intent in order to win in a sexual harassment case. The court meant that the harassment must be “based on” the plaintiff’s sex, race, etc. But intent to harm or to discriminate actually is not an element of a harassment case. If conduct has the “effect” of creating an objectively hostile work environment in the eyes of a reasonable victim, that’s supposed to be enough.
  2. The court did not mention whether a defendant would be entitled to a special jury instruction explaining that the purpose of the testimony is not to establish the plaintiff’s claim of a hostile environment or damages. Defendants certainly should request such an instruction, or the jury may be confused into thinking that the plaintiff can prove his or her own work environment was hostile because of the way others were treated, even outside of the defendant’s presence.
  3. The court does not take into account the possibility that if a bunch of people testify about the defendant, the jury will find in the plaintiff’s favor just to punish the defendant, even if the evidence of conduct against the plaintiff is thin. The court did not draw the line at all — allowing evidence by employees who did not even work at the same time as the plaintiff.
  4. This case makes it highly dangerous to retain an employee who has previously been found to violate an anti-harassment policy. If all evidence of harassment conduct against other employees is admissible, even offered by employees who did not work at the same time as the plaintiff, then it will be a big risk to permit an employee previously identified as a “harasser” to stay employed.

Contact The Rubin Law Corporation by e-mailing us or calling 310-385-0777 to speak with a lawyer about liability for supervisor sexual harassment or liability for co-worker sexual harassment.

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