A Court Decision Based on “Me Too” Evidence Goes Against The Employer

Last week, a California court held that evidence of alleged inappropriate gender-related conduct directed at female employees outside the plaintiff’s presence (and of which the plaintiff was not even aware) was admissible to prove the plaintiff was sexually harassed and fired because of her gender.  In Pantoja v. Anton, the plaintiff sued her former employer, an attorney, for (among other things) sexual harassment and gender discrimination, alleging she was subjected to a hostile work environment and fired because she is female.  The case went to trial and the trial judge granted the employer’s motions to keep out evidence of profanity and alleged touching directed at other female employees.  The judge ruled that unless the conduct occurred in the plaintiff’s presence or somehow affected the plaintiff, it was not admissible.  As for evidence directed to the plaintiff, she alleged that the defendant employer touched her inappropriately and regularly used profanity around her, some of it arguably gender based.  The employer testified that he never touched the plaintiff sexually and that while he may have used profanity, he never directed it at the plaintiff.  Instead, he might use profanity when describing a situation, which is different than calling someone a profane name or similar use of profanity.  The jury ultimately found for the employer and against the plaintiff on her claims for harassment and discriminatory firing.  The plaintiff appealed, arguing that the trial court erroneously excluded “me too” evidence.

The appellate court agreed with the plaintiff and held that the trial judge had abused his discretion in excluding “me too” evidence of harassing conduct directed at female employees other than the plaintiff.  The court held that it did not necessarily matter if the conduct did not occur in the plaintiff’s presence or otherwise directly affect the plaintiff.  The court held that such evidence was relevant to show the alleged harasser’s “intent.”  Interestingly, “intent” generally is not relevant to proving harassment.  Harassment can occur and be proven regardless of whether the harasser intends his conduct to be harassing.  This is what is commonly referred to as the “innocent harasser.”  What is relevant is the victim’s perception (and the perception of an objectively reasonable person) of the conduct.  Thus, the court’s ruling that harassment towards others is relevant to prove the harasser’s intent is at odds with fundamental harassment law.  Now, to be clear, the plaintiff also had a discrimination claim based on allegations she was fired because of her gender.  Intent is, of course, relevant to proving a discrimination claim because the decision-maker’s intent behind the termination decision is critical.  But the court nonetheless treated the two claims the same for purposes of analysis of the admissibility of this “me too” evidence. 

This case was all about the harasser’s propensity to engage in the behavior and the victim’s perception of having been harassed. Managers must remain focused and enforce a zero tolerance policy. It’s getting tougher!