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California Sexual Harassment Law and “#MeToo” Evidence
The “#MeToo” evidence doctrine allows a plaintiff in a discrimination or harassment case to introduce evidence not only of how they were treated, but also of how other similarly situated individuals were treated by the same employer.
Under California law, this type of evidence may be admissible to prove an employer’s intent, motive, or that the employer’s stated reasons for its actions are a pretext, rather than to show character or propensity.
Johnson v. United Cerebral Palsy and Early #MeToo Evidence
In Johnson v. United Cerebral Palsy / Spastic Children’s Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, an employee who alleged she was terminated due to pregnancy was permitted to present testimony from five former employees who claimed they were also fired after informing the same employer that they were pregnant.
Applying the California Evidence Code, the court allowed the admission of this “#MeToo” evidence to demonstrate the employer’s discriminatory intent and to show that the employer’s stated reasons for termination were pretextual.
Pantoja v. Anton and the Expansion of #MeToo Evidence
Several years later, the California Court of Appeal significantly expanded the scope of admissible “#MeToo” evidence in Pantoja v. Anton (2011) 198 Cal.App.4th 87.
The court held that evidence of harassment against other female employees—even when it occurred outside the plaintiff’s presence and before or after her employment—was admissible under Evidence Code section 1101(b) to show discriminatory or biased motive.
The Facts and Trial Court Rulings in Pantoja
In Pantoja, the plaintiff alleged that her employer, an attorney, engaged in repeated acts of sexual and racial harassment, including slapping her buttocks, touching her leg while offering money for a massage, calling her a “stupid bitch,” and referring to employees as “my Mexicans.” She was ultimately terminated and sued for sexual and racial harassment and discrimination under the California Fair Employment and Housing Act (“FEHA”).
Before trial, the defendant successfully moved to exclude evidence of discriminatory or harassing conduct unless the plaintiff personally witnessed it and it directly affected her work environment. The trial court also excluded most evidence of racial bias, concluding that isolated incidents were insufficient.
After a jury verdict in favor of the defendant, the plaintiff sought a new trial, arguing that the court improperly excluded “#MeToo” evidence. The motion was denied, and the plaintiff appealed.
The Court of Appeal’s Reversal
The Court of Appeal reversed, holding that while “#MeToo” evidence is inadmissible to prove character or propensity under Evidence Code section 1101, it is admissible to:
- Establish discriminatory intent or motive
- Impeach a witness
- Attack credibility
The court reaffirmed Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, which bars the use of other-employee harassment evidence to show propensity, but clarified that Beyda did not address admissibility for purposes such as intent or motive.
The court also distinguished Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, explaining that while a hostile work environment claim may require personal exposure, “#MeToo” evidence may still be admissible to establish the motivation behind the harassing conduct.
Subsequent Cases Applying Pantoja
Numerous cases have relied on Pantoja to admit “#MeToo” evidence, including De La Cruz v. Cal-Sac Sonoma, LLC (2013) WL 782283. In that case, the plaintiff alleged sexual harassment and retaliation, and the jury found in her favor.
On appeal, the defendants argued that testimony from another employee was inadmissible propensity evidence. The Court of Appeal rejected this argument, holding that while such evidence cannot prove propensity, it may be admissible to establish intent or motive.
Limits of the #MeToo Doctrine: Hatai v. Department of Transportation
The scope of Pantoja is not unlimited. In Hatai v. Department of Transportation (2013) 214 Cal.App.4th 1287, the plaintiff alleged discrimination based on Japanese ancestry. However, he attempted to introduce “#MeToo” evidence showing discrimination against employees who were not Arab.
The Court of Appeal held that the doctrine did not permit evidence of discrimination against employees outside the plaintiff’s protected class. Because the plaintiff alleged discrimination based on Asian or Japanese ancestry, he could introduce evidence involving similarly situated employees—but not evidence of generalized favoritism toward Arab employees.
The court distinguished Pantoja, emphasizing that in Pantoja the “#MeToo” evidence came from individuals within the same protected classes as the plaintiff.
Why #MeToo Evidence Matters Under California Law
Together, these cases establish that “#MeToo” evidence plays a critical role in California harassment and discrimination litigation. When properly framed and tied to the plaintiff’s protected class and claims, such evidence can be powerful proof of discriminatory intent.
California courts continue to recognize that patterns of misconduct—rather than isolated incidents—are often essential to exposing unlawful workplace behavior.