#MeToo not just a movement, but also evidence in discrimination claims

POYNTER

The #MeToo campaign started about 10 years ago but only recently developed into a movement and exploded into public attention in the wake of news stories regarding Hollywood producer Harvey Weinstein, who stands accused by approximately 70 women of sexual harassment and sexual assault.  The #MeToo movement has now spread far and wide and brought to light sexual abuses in many workplaces – from academia to politics to sports.

Apart from becoming a cultural phenomenon, the phrase “me-too” is actually found in the law, as when plaintiffs invoke “me-too” evidence in support of their claims for damages involving sexual harassment and discrimination. Such cases are notoriously difficult to prove by way of documents or witnesses. Employees often struggle to show that the employer intended to unlawfully harass or discriminate against them.

Thus, an employee may be left with indirect or circumstantial evidence to show the employer’s motives or pattern and practice. This is where an employee may introduce “me too” evidence – witnesses who will provide testimony that the same employer harassed them in a similar manner.

Although the concept of a “me-too” evidence may sound straightforward, California courts have grappled with its application. Consider the following case:

Lorraine Pantoja worked at Thomas Anton’s law firm. Anton slapped Pantoja’s buttocks, touched her leg while offering her $200, and asked for a shoulder massage. Pantoja heard Anton use the word “Mexicans” in a derogatory way. Finally, he called Pantoja a “stupid bitch” and fired her.  Pantoja sued her employer for race discrimination, sex discrimination and sexual harassment.

Anton contended if he used the word “Mexican” once, this is not enough to create a racially harassing environment. The trial judge excluded testimonies from other employees tending to show racial bias on Anton’s part. The trial judge also excluded testimonies from other employees tending to show all evidence of acts of discrimination and harassment because Pantoja did not personally witness such acts.

Anton claimed that he never harassed anyone because that was something he would not do. He said his frequent use of profanity was always directed at situations, not people.

The jury was not allowed to hear evidence that Anton had sexually harassed others. Eventually, the jurors found against Pantoja. Pantoja appealed.

The Court of Appeal reversed the trial court and ruled that testimonies from other employees should have been admitted. Evidence that Anton harassed other women outside Pantoja’s presence is important to show that Anton harbored a discriminatory intent based on gender. The me-too testimonies of other employees would have enabled the jury to evaluate the credibility of Anton’s arguments that he did not direct profanities at persons and did not have a discriminatory intent.

The court also noted that derogatory or abusive language motivated by gender bias may create a hostile working environment.  Thus, the Pantoja case shows that courts may consider “me too” evidence in harassment and discrimination cases. This is true particularly where the case involves the same harasser, and the me-too witnesses are in the same protected class as the plaintiff (the employee who filed the case).

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com or our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is the recipient of PABA’s Community Champion Award for 2016.]