HR Law Update: I'll Testify: He Did That To Me, Too


The following is an analysis prepared by CalChamber, the California Chamber of Commerce, of impact of a recent ruling by the California Court of Appeal that took a broad view regarding the admissibility of "me too" evidence in a sexual harassment trial.

Employees suing for sexual harassment often try to introduce "me too" evidence. This evidence typically consists of testimony from other employees in the workplace stating that that they also faced similar types of harassing behavior. The argument is that if the accused employee harassed others, it is more likely that he or she harassed the employee who is now suing.

In this case, the court allowed a former employee to present “me-too” evidence that the accused employee harassed other co-workers, despite the fact that the actions did not take place in her presence and were not directed at her. This ruling is a significant departure from previous rulings, which limit the use of "me-too" evidence to narrow situations. Pantoja v. Anton, 198 Cal.App.4th 87 (2011)

Boss Engages in Repeated Touching

The case was brought by a Bakersfield office worker, Lorraine Pantoja, against her former employer, a local lawyer named Thomas Anton. Pantoja began working for Anton in 2002 and was fired eight months later. Pantoja claimed that during her employment, Anton slapped and touched her buttocks, touched her leg while offering her $200, and asked for a shoulder massage. She also alleged that he used the term "Mexicans" in a derogatory manner. Finally, he called her a “stupid incompetent b----” and then fired her. She sued for sexual and racial harassment and gender discrimination.

During the trial, Pantoja wanted to call former female employees as witnesses to testify that Anton treated them in a similar way. Some of this testimony included allegations that Anton:

Frequently leered at women’s buttocks
Touched female employees on their buttocks and thighs
Pulled down the elastic on a female employee’s bra to read the label
Told a female employee to wear see-through clothing
Commented on female employees’ bust size

Paradoxically, Anton testified at trial that he teaches seminars on the subject of sexual harassment and represents clients in sexual harassment cases. He claimed that he would never allow such conduct to occur in his office.

Excluding Evidence

Anton sought to exclude all evidence of other acts of discrimination or harassment unless:

The acts were personally witnessed by Pantoja
The acts adversely affected her working environment

The trial court agreed with Anton and only allowed "me too" testimony if the conduct occurred while Pantoja was employed by Anton and if she was aware of it. The jury decided in Anton’s favor.

"Me too" Evidence May Show Gender Bias and Lack of Credibility

Pantoja appealed the trial court’s decision, and the appellate court overturned the trial court’s ruling. The appellate court found that the "me too" evidence would help the jurors decide whether Anton engaged in the alleged unlawful conduct. Its exclusion was prejudicial to Pantoja.

According to the court, Pantoja should have been allowed to present evidence of other harassment outside of her presence to attempt to show that Anton had a discriminatory intent or a gender bias, but not to show that he had the type of character that would lead to harassment. The court also ruled that Pantoja should have been allowed to present the evidence to try to cast doubt on Anton’s credibility.

The court found that the value of the evidence to the jury was "unquestionable:"

"If the evidence had been admitted, the jury would have had additional grounds for believing Pantoja's contention that Anton harbored a gender bias that was expressed in his words and actions toward her, and additional grounds for disbelieving Anton's contentions that he had a policy of not tolerating harassment and a practice of not directing profanity at individuals."

Best Practices

The court took a liberal view of the admissibility of such evidence. This decision will likely expand the type of discovery that will be available to employees suing for discrimination and harassment.

The case reinforces the need to be proactive and take action at the first sign of questionable conduct. If you wait until you have a full-fledged legal violation, you waited too long. See CalChamber HRCalifornia's Law Library for detailed information on avoiding harassment claims. (Requires membership to log in but free 15-day trial is available.)

Employers should:

Have an anti-harassment policy in place that specifically prohibits sexual harassment and provides a complaint process. Communicate the policy to all employees

Post the required anti-harassment/anti-discrimination poster and distribute the required sexual harassment pamphlet. See CalChamber HRCalifornia's Law Library for more on California laws on sexual harassment(Requires membership to log in but free 15-day trial is available.)

Investigate concerns about harassment in the workplace

Ensure that you have taken all steps necessary to remedy any harassment that occurs and to prevent harassment from occurring again

Train supervisors to recognize the types of conduct that amount to sexual harassment. For many employers, 2011 is a mandatory supervisor sexual harassment training year

CalChamber offers affordable and professional harassment prevention training that satisfies the training requirement.