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Me too! Me too! California court lets in evidence of harassment of others

August 10, 2011

California law generally frowns on “character evidence” — evidence of how someone acted in unrelated circumstances offered to prove he acted the same way on another occasion.  But there are exceptions to the rule.  For instance, if the evidence of prior conduct shows something other than just character, like intent or credibility, it can be admitted.

A new California case tackles one of the recurring questions of character evidence in employment law:  Can a plaintiff introduce evidence of the defendant’s harassment of others to prove that she herself was harassed, sometimes referred to as “me too” evidence?  The court in Pantoja v. Anton said, under the circumstances of that case, that she could.

The case involved a male lawyer who was accused of harassing a female staff member.  The facts are fairly graphic and are set out at length in the opinion.  Ms. Pantoja testified that Mr. Anton repeatedly humiliated her, touched her inappropriately, berated her in profanity-laced tirades (including his personal trifecta of the b-word, the f-word, and the c-word), and otherwise made her life a living hell.  Anton admitted he used profanity on regular occasions, but never directed toward plaintiff or another person.  He denied touching plaintiff, or anyone else, inappropriately.  He stated he didn’t tolerate harassment in his office, and would have stopped it had it happened.

Ms. Pantoja also tried to present testimony of as many as five other female employees that Anton had directed profanity at them, berated them, made crude sexual remarks to them, and touched them inappropriately.  The trial court concluded that such evidence could come in only if plaintiff herself had witnessed the incidents.  Otherwise, the court ruled, it was an inappropriate attempt to show (character evidence) that because Anton harassed others, he must have harassed Ms. Pantoja.

Wrong answer, said the court of appeal:

The court’s ruling erroneously disregarded the possibility that this me-too evidence could be relevant to prove Anton’s intent when he used profanity and touched employees.  Further, by the time the defense had presented its case, it had become clear that Anton’s intent was an issue in dispute, contrary to the court’s belief.  Anton’s case was premised on the claim that his frequent use of profanity at a loud volume was always directed at situations, not people; it happened in the presence of men as well as women; and Anton never would have tolerated harassing behavior by anyone in his office, let alone perpetrated it himself.  To the contrary, evidence that Anton harassed other women outside Pantoja’s presence could have assisted the jury not by showing that Anton had a propensity to harass women sexually, but by showing that he harbored a discriminatory intent or bias based on gender.  It would have enabled the jury to evaluate the credibility of his and his other witnesses’ assertions that, although he yelled profanities in the office, he did not use the words Pantoja claimed; he did not direct profanities at Pantoja; and he did not have a discriminatory intent.

The court of appeal went on to find that the trial court abused its discretion and likely affected the outcome of the case.  Accordingly, the judgment was reversed and the case sent back for another trial.

There is more to the opinion (it’s 50 pages, there has to be more), but from the standpoint of employment trial counsel the “me-too” part is the most interesting, and will have the most impact going forward.  After Pantoja, it is reasonable to suspect that more hostile work environment plaintiffs will be attempting to introduce this evidence as proof of “intent” or “credibility.”  The procedural posture of this case will give trial judges pause in excluding such evidence in the future.

So employers, here’s another reason why you need to be diligent about catching harassment fast.  If you get it the first time, there will be no one to say “me, too.”  If you don’t, get ready to face the whole chorus — and write a check with a few more zeros than you might otherwise — because after Pantoja, the judge is probably going to let it in.

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