Sexual-Harassment.pngIn the case of Pantoja v. Anton, Lorraine Pantoja worked as a receptionist/secretary for a law firm owned by Thomas Anton.  Pantoja alleges that Anton would slap her buttocks, touch her buttocks and leg, and once asked for a shoulder massage.  He also referred to his employees as “my Mexicans.”  Eventually, Anton called Pantoja a “stupid bitch” and fired her. 

Pantoja sued Anton for race and sex discrimination and hostile work environment sexual harassment in violation of the Fair Employment and Housing Act.  At trial, Pantoja attempted to present testimony from numerous witnesses who had heard Anton yell profanities at women and refer to them as “bitches” and “idiots.”  Witnesses were also prepared to testify about Anton’s leering and touching of female employees.  However, the superior court excluded all of Pantoja’s evidence of harassing behavior unless she personally witnessed the acts that adversely affected her working environment.  At trial, Anton denied touching female employees’ buttocks or legs or referring to women as “bitches.”  He testified that he had a practice of prohibiting any type of sexual harassment during the time Pantoja worked for him.  The jury found for the defense.  Pantoja moved for a new trial on the ground that the court erred in excluding the “me too” evidence.  The superior court denied the motion, and the California Court of Appeal reversed.

Evidence of sexual harassment of other employees, unknown to the victim, cannot be offered at trial to prove a defendant’s propensity to harass.  The evidence can be offered, however, to show that an individual has discriminatory or biased intent.  Likewise, such evidence can be used to impeach a witness’ credibility. 

Here Pantoja was required to show a discriminatory intent on Anton’s part.  The excluded evidence was admissible to prove Anton’s intent or motive even if the conduct did not take place in Pantoja’s presence or was unknown to her.  It was also admissible, for example, to impeach Anton’s testimony that he had a practice of prohibiting sexual harassment in the office.