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California Court Allows "Me Too" Evidence to Show Employer Bias

  • August 26, 2011

In a potentially dangerous precedent for employers, a California appeals court has ruled that an employee claiming employer sexual or racial harassment can prove the employer's discriminatory intent by showing the employer harassed other workers, even though such harassment occurred outside the complaining employee's presence. Pantoja v. Thomas J. Anton, et al., No. F058414 (Cal. Ct. App. Aug. 9, 2011).  The Court found the lower court improperly excluded evidence of the employer's alleged gender bias in the form of harassing activity against women employees other than the plaintiff. Although the excluded “me too” evidence related to harassing activity that occurred outside the plaintiff's presence — and even at times when she was not an employee — it should have been admitted as evidence of a discriminatory or biased intent or motive under California Evidence Code § 1101(b), the Court of Appeal concluded. The lower court's exclusion of the evidence on the grounds it was propensity or character evidence under Evidence Code § 1101(a) therefore was prejudicial.

Employer's Boorish Behavior Alleged

Lorraine Pantoja was a member of attorney Thomas Anton's staff. She claimed that Anton repeatedly used obscenities and derogatory language in describing and talking to her, touched her inappropriately, and engaged in other conduct amounting to sexual and racial harassment. Anton subsequently fired Pantoja, and she sued alleging violations of the California Fair Employment and Housing Act (FEHA), claiming sex discrimination (Anton fired her because she was a woman) and sexual harassment in the form of a hostile work environment created by his words and behavior.

After Anton denied her charges, Pantoja sought to introduce evidence of similar conduct by Anton toward other female employees. The court excluded as improper character evidence all evidence of acts of discrimination and harassment unless Pantoja “personally witnessed such acts” and the acts “adversely affected her working environment.”  Pantoja claimed such evidence was needed to show Anton's discriminatory intent toward women. The jury found for Anton and Pantoja appealed.

Evidence of Bias Intent

The Court of Appeal agreed with Pantoja that the trial court erred in its ruling. According to the appellate court, evidence that Anton harassed other women outside Pantoja's presence could have assisted the jury by showing that he harbored a discriminatory intent or bias based on gender, even if it did not show that Anton had a propensity to harass women sexually.
The Court held the evidence was also admissible to impeach Anton's credibility as a witness, and to rebut factual claims made by defense witnesses.

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