Wednesday, August 31, 2011

Good New Case Law on Using Testimony from Other Victims in Harassment Cases:

Fifth District Court of Appeal Gets it Right in Pantoja v. Anton, 198 Cal.App.4th 87 (2011)

On August 9, 2011, the Fifth District released a strong published opinion on “me too” evidence, and other evidentiary issues in sexual harassment and race discrimination cases. Pantoja v. Anton, 198 Cal.App.4th 87 (2011). This opinion injects a much-needed dose of common sense into the law around proving that harassment occurred—something that is often a “he said-she said” situation.

The plaintiff, Lorraine Pantoja sued her former employer, Thomas Anton, under California’s Fair Employment and Housing Act for sex and race discrimination and harassment, among other claims, while she was employed as a receptionist/secretary in Mr. Anton’s law office. Id. at *12. Ms. Pantoja alleged that Mr. Anton engaged in the following conduct, among other acts: slapping Ms. Pantjo’s buttocks, touching her leg while offering $200, referring to his employees as “my Mexicans,” and ultimately calling Ms. Pantoja a “stupid bitch” and then firing her. 198 Cal.App.4th 87, at *2.

At trial, the trial court in Kern County refused to admit evidence from Ms. Pantoja’s female coworkers of Anton’s conduct towards them that was not necessarily witnessed by Ms. Pantoja. Id. at *4. Ms. Pantoja sought to admit this “me too” evidence to show that Mr. Anton engaged in a pattern of harassment and race discrimination against his female, often Latina employees. Id. at *6. This evidence included extensive testimony from other employees that Mr. Anton inappropriately touched them, said things like “monkeys can do your job better than you,” telling a female employee on a ladder “I could see right through that skirt,” and “I have three Mexicans working for me. I’ve never had that many working for me before. Usually you hire Mexicans to do your maid work.” Id. at *8-9. However the Court reasoned that such “me too” evidence ran afoul of California’s evidence rules against “character evidence” and prevented the jury from hearing this testimony.[1]

However, the trial court allowed Mr. Anton to admit evidence supporting his general course of conduct. For example, the court allowed Mr. Anton’s lawyers to lead him to testimony that any physical contact with his employees was merely “avuncular” or “uncle like.” Id. at *8. This testimony was not limited to the time that Ms. Pantoja was employed. Id.

The Court of Appeal found that the trial court committed error by allowing what was essentially a double standard in favor of Mr. Anton:
We conclude that, in the event this case is retried, both parties need to be given the opportunity to present their evidence in an even-handed manner. Only then will the jury be able to fulfill its responsibility of determining where the truth actually lies based on a balanced and accurate review of admissible evidence.
Id. at *25. Importantly, the Court also found that the trial court erred in that “[its] decision that all evidence supporting a sexual harassment plaintiff's case must be limited to evidence of specific events that took place in the plaintiff's presence[. This ruling] had the unfortunate result of skewing the evidence.” Id. at *23.

This decision is important for plaintiffs in harassment cases, since, absent such “me too” evidence from co-workers willing to tell the truth about harassment that they endured, harassing incidents are frequently merely “he said-she said” situations. Harassment often occurs one-on-one, without many other witnesses. Likewise, harassers are seldom foolish enough to commit their harassment in writing.

With this decision, the challenging task of proving that inappropriate touching occurred, or that inappropriate words were spoken, has been made a bit easier for harassment victims.

If you believe you have been harassed or discriminated against in your workplace, contact Bryan Schwartz Law today.

[1] See Cal. Evid. Code § 1101.

1 comment:

  1. The problem with the me-too doctrine is collusion and re-characterization of events.

    While it's true that some women find the courage to make a complaint only after they discover that it's "not just" them, it's also true that multiple women who bear ill will for a particular male will collude in their stories. The collusion can be deliberate, or the collusion might be tacit. In recounting events, two women merely talking with one another may bargain among their memories until they reach a mutually consistent account that might not resemble the facts. We know the existence of false claims. We know the existence of mistaken eyewitness accounts. Yet when it comes to sexual harassment, the law tends to turn a blind eye to these shortcomings. These failures are magnified in effect by unique facets of sexual harassment cases: subjective offensiveness, the ambiguity of unwelcomeness, and the "reasonable woman" standard.

    Also, when one woman claims an act of harassment (true or untrue), other women who are questioned about the alleged harasser might re-evaluate conduct that they didn't previously consider unwelcome or subjectively offensive. An inept Don Juan in a latter instance with one woman might have had purely platonic intentions with respect to his actions toward another woman in an earlier encounter. In my opinion, a "me too" allegation should be first reviewed by the judge to determine whether its probative value is outweighed by unfair prejudice.

    These are reasons why contemporaneous or near-contemporaneous complaints should be required in all harassment cases. Title VII was designed to EMPOWER women to come forward, and the prohibition against retaliation gives teeth to the laws protection.

    It's particularly troubling to me that women get to decide ex post what behavior is welcome or offensive. A request for a date by one man might lead to a very pleasant evening for him, but the same actions by another man would be considered an unwelcome advance. The law did not ban all sexual acts in the workplace nor did it impose a workplace code of conduct. We are making criminals out of undesirable men and rewarding unscrupulous women who use Title VII to avenge personal grudges.

    Employers who investigate without the watchful eye of the courts are likely to impose harsher standards for harassment than the law defines. Employers of at-will employees may terminate someone for acts falling short of actual harassment and, per Cotran, it's not even necessary for the employer to get the facts right!

    Because failure to act appropriately deprives the employer of an essential prong of an affirmative defense, the interests of the alleged harasser are thrown under the bus. The terminated employee has only weak recourse of suing the complainant for defamation and the employer for wrongful termination. A defamation case must PROVE untruth and malice, yet a woman's subjective view of offensiveness and unwelcomeness is not falsifiable. The wrongful termination case must PROVE lack of a good-faith basis, and Cotran demonstrates that frenetic activity by the employer can substitute for factual accuracy. The harm done to the wrongfully terminated person can far exceeds the effects of mild to moderate harassment, and often the problem can be solved with additional training, reassignment, etc. Termination is using a sledgehammer to drive a nail.

    These laws are patently unfair to the alleged harasser who, in more than 85% of cases, are men. It violates equal protection. One would be hard-pressed to find any meaningful court decision that elucidates the rights of the accused. In many cases, the accusation and investigation constitute punishment. And as we've seen in the cases of Bill Clinton, Clarence Thomas, and Herman Cain, harassment allegations can harm one's reputation whether true or false, investigated or uninvestigated, settled or unsettled, gag order or no gag order.