California Appeals Court Expands Admissibility Of 'Me Too' Evidence

In a case that significantly expands the scope of evidence that can be presented in a California employment discrimination and harassment trial, a California Court of Appeal ruled in Pantoja v. Anton, No. F058414 (Aug. 9, 2011), that "me too" evidence of harassing activity against other female employees, which occurred outside of the plaintiff's presence and at times when the plaintiff was not even employed, is admissible as evidence tending to show a discriminatory or biased motive under California Evidence Code section 1101(b).

Lorraine Pantoja was employed by the defendant, attorney Thomas Anton, from January through October 2002. Pantoja claims that during her employment, she was subjected to hostile environment sexual and racial harassment, including inappropriate touching, sexually- and racially-charged slurs, and other sexually-inappropriate conduct. The alleged conduct included, but was not limited to: touching of her buttocks and leg; being called a "stupid b—ch" and a "f—king c—t;" use of other profane language; being asked to place the defendant's food on the floor of his office while he watched her bend down; and derogatory use of the term "Mexicans." Ultimately, the plaintiff was terminated from her employment, and she filed a lawsuit. The claims that proceeded to trial were sexual and racial harassment and gender and race discrimination in violation of the California Fair Employment and Housing Act (FEHA).

Prior to trial, the defendant sought to exclude evidence of all acts of discrimination and harassment unless the plaintiff personally witnessed the acts such that they adversely affected her working environment. The defendant separately sought to exclude evidence of racial bias, given that the plaintiff had claimed during her deposition only one occasion in which she heard the term "Mexicans" used in a manner she considered to be derogatory. The trial court granted both motions.

At trial, while denying the alleged conduct, the defendant presented evidence that he may have used profanity at work, but it was never directed at individuals. The defendant's testimony regarding profanity was not limited to that time period during which the plaintiff was employed. The plaintiff sought during trial to admit evidence of the defendant's harassing or discriminatory conduct witnessed by other employees, but not experienced by the plaintiff – so called "me too" evidence – but the court limited testimony to conduct occurring during the...