California Court Allows “Me Too” Evidence to Show Employer Bias

In a potentially dangerous precedent for employers, a California appeals court has ruled that an employee claiming employer sexual or racial harassment can prove the employer’s discriminatory intent by showing the employer harassed other workers, even though such harassment occurred outside the complaining employee’s presence. Pantoja v. Thomas J. Anton, et al., No. F058414 (Cal. Ct. App. Aug. 9, 2011). The Court found the lower court improperly excluded evidence of the employer’s alleged gender bias in the form of harassing activity against women employees other than the plaintiff. Although the excluded “me too” evidence related to harassing activity that occurred outside the plaintiff’s presence — and even at times when she was not an employee — it should have been admitted as evidence of a discriminatory or biased intent or motive under California Evidence Code § 1101(b), the Court of Appeal concluded. The lower court’s exclusion of the evidence on the grounds it was propensity or character evidence under Evidence Code § 1101(a) therefore was prejudicial.