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California Sexual Harassment #MeToo Law
The “#MeToo” evidence doctrine allows a plaintiff to present evidence of discrimination not only against themselves, but also against other individuals who are similarly situated. In Johnson v. United Cerebral Palsy / Spastic Children’s Foundation of Los Angeles and Ventura Counties, an employee who alleged that she was terminated because she was pregnant was permitted to present testimony from five former employees who claimed they were also fired after informing the same employer that they were pregnant. Johnson v. United Cerebral Palsy / Spastic Children’s Fdn. (2009) 173 Cal. App. 4th 740. Pursuant to the California Evidence Code, the court in Johnson allowed the admission of “#MeToo” evidence as proof of the employer’s intent or motive, and to demonstrate that the reasons given by the employer for its actions were a pretext.
Several years later, in Pantoja v. Anton, a California Court of Appeal expanded the scope of evidence that may be presented at trial in workplace harassment and discrimination cases in California. Pantoja v. Anton (2011) 198 Cal. App. 4th 87. The court held that “#MeToo” evidence of harassment against other female employees—occurring in the plaintiff’s absence and even before the plaintiff was employed—is admissible as evidence tending to show a discriminatory or biased motive under California Evidence Code section 1101(b).
In Pantoja, the plaintiff alleged that her former employer, Anton, an attorney, committed several acts of harassment against her, including slapping her buttocks, offering her money for a massage immediately after touching her leg, calling her a “stupid bitch,” and referring to several employees as “my Mexicans.” Ultimately, the plaintiff was terminated and filed suit. 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).
Before trial, the defendant moved to exclude evidence of all discriminatory and harassing acts unless the plaintiff personally witnessed them in a way that affected her work environment. The defendant also separately sought to exclude evidence of racial bias, since the plaintiff testified during her deposition that she heard Anton use the term “Mexicans,” in a way she considered derogatory, only once. The trial court granted both motions. At trial, the defendant presented evidence that although Anton may have used profanity in the workplace, he never directed it at any specific individual. The plaintiff attempted to introduce evidence of harassing or discriminatory conduct by the defendant witnessed by other employees but not personally experienced by the plaintiff (“#MeToo” evidence); however, the court limited testimony to conduct that occurred only during the plaintiff’s employment and that was personally known to her. After a jury verdict in favor of the defendant, the plaintiff moved for a new trial on the ground that the court erred by excluding the “#MeToo” evidence. The trial court denied the motion, and the plaintiff appealed.
The Court of Appeal reversed, holding that although “#MeToo” evidence is inadmissible to prove character or propensity under Evidence Code section 1101, it is admissible to establish intent, impeach a witness, and attack credibility. The court reaffirmed its earlier decision in Beyda v. City of Los Angeles (1998) 65 Cal. App. 4th 511, which prohibits the use of sexual harassment evidence involving other employees for the purpose of showing a defendant’s propensity to harass. However, the court distinguished the two cases, explaining that Beyda did not address when “#MeToo” evidence is admissible to prove intent or motive because that argument was not raised in Beyda. The appellate court also addressed Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, which requires that, to establish a hostile work environment claim, the plaintiff must show that the conduct was either directed at them or witnessed by them and occurred in their immediate environment. The Pantoja court nevertheless held that “#MeToo” evidence was admissible to establish the motivation behind sexual harassment.
Numerous subsequent cases have cited Pantoja and its expanded view of “#MeToo” evidence, including De La Cruz v. Cal-Sac Sonoma, LLC (2013) WL 782283. In De La Cruz, the plaintiff alleged she was sexually harassed by her supervisor and retaliated against after reporting the harassment. The jury found the defendants liable. On appeal, the defendants argued that the trial court abused its discretion by allowing testimony from a former employee, claiming the testimony was inadmissible propensity evidence. Citing Pantoja, the Court of Appeal held that while testimony about harassment of other employees (“#MeToo” evidence) is inadmissible to prove propensity, it may be admissible for other purposes, such as intent.
The defendants also argued that “#MeToo” evidence is admissible to show a hostile work environment only if the plaintiff had personal knowledge of the harassment, relying on Beyda. The Pantoja court rejected this argument, noting that Beyda stands for the proposition that evidence of sexual harassment of other employees unknown to the plaintiff is not admissible to prove a defendant’s propensity to harass, and that Beyda does not address when such evidence is admissible to prove intent or motive. Under the Pantoja rule, testimony from a former employee about similar incidents was admissible to show the defendant’s intent in his conduct toward the plaintiff.
Another post-Pantoja case offering a different variation on “#MeToo” evidence—and serving as a cautionary example for employees and their attorneys on how to frame discrimination claims—is Hatai v. Department of Transportation (2013) 214 Cal. App. 4th 1287. In Hatai, the plaintiff alleged he was discriminated against based on his national origin (Japanese) and race (Asian). As the case progressed, however, the plaintiff attempted to argue that his supervisor, who was of Arab descent, discriminated against all employees who were not of Arab descent. The plaintiff sought to introduce “#MeToo” evidence that other employees were discriminated against because they were not Arab. The trial court excluded this evidence but allowed evidence of animus against Asians. The jury returned a verdict in favor of the defendant.
On appeal, the plaintiff argued that he should have been allowed to present evidence that his supervisor discriminated against anyone who was not Arab. The Court of Appeal rejected this argument, finding it too vague and noting that the plaintiff had alleged discrimination based on Asian or Japanese ancestry, not Arab favoritism. The “#MeToo” doctrine permitted the plaintiff to present evidence that his supervisor subjected other Caltrans employees of Asian or East Asian/Japanese ancestry to similar discriminatory conduct. However, based on the plaintiff’s pleadings, the doctrine did not entitle him to present evidence of discrimination against employees outside his protected class to prove discrimination against him. Accordingly, the court concluded that the trial court properly excluded evidence of discrimination by the supervisor against individuals who were not of Asian ancestry. The court further distinguished Pantoja v. Anton, noting that unlike in Hatai, the “#MeToo” evidence in Pantoja came from individuals within the same protected classes alleged by the plaintiff.