Q: MY boss at work would slap or touch my buttocks, make comments about my breasts, or other parts of my body, and tell me to wear shorter skirts. He uses vulgar language and has called me “stupid bitch” a number of times. I’d like to file a sexual harassment claim but, unfortunately, I have no witnesses, and it might end up being his word against mine. However, he has done this to other female employees too. What can I do?
A: Even if there were no witnesses during the incidents when an employer made inappropriate acts and comments, an employee may still present evidence of the employer’s pattern and practice of discriminating against women in the workplace. Such evidence are called “me-too” evidence.” Testimony of other employees about the employer’s treatment of them is relevant to show the employer’s discriminatory intent.
Consider the following case, decided by California’s Court of Appeal:
While Lorraine Pantoja worked at Thomas Anton’s law firm Anton slapped Pantoja’s buttocks, touched her buttocks, touched her leg while offering her $200, and asked for a shoulder massage. He referred to his employees as “my Mexicans.” Finally, he called Pantoja a “stupid bitch” and fired her. Patonja sued her employer for sex discrimination and sexual harassment in the form of a hostile work environment created by Anton’s words and behavior, and race discrimination.
During trial, the judge excluded testimonies from other employees that might tend to show racial bias on Anton’s part. Pantoja had heard Anton use the word “Mexicans” in a way she considered derogatory. Anton’s attorneys contended that, because Pantoja had only said she heard Anton use the word once, its use was occasional or sporadic and therefore could not establish a racially harassing environment.
The judge also excluded testimonies from other employees tending to show all evidence of acts of discrimination and harassment unless Pantoja personally witnessed such acts and the acts adversely affected her working environment.
Anton claimed that he never harassed anyone because that was something he would not do. 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. The law is not a civility code and is “not designed to rid the workplace of vulgarity.” However, the plaintiff’s evidence in this case, if believed, would be more than “vulgarity” in the workplace.
Anton’s defense is that his frequent use of profanity at a loud volume was always directed at situations, not people and it happened in the presence of men as well as women. Anton claimed he never would have tolerated harassing behavior by anyone in his office, let alone perpetrated it himself.
The court said that evidence that Anton harassed other women outside Pantoja’s presence is important to show that Anton harbored a discriminatory intent based on gender. It would have enabled the jury to evaluate the credibility of the employer’s assertions that, although he yelled profanities in the office, he did not direct profanities at Pantoja and he did not have a discriminatory intent.
The court also noted that mere vulgarity by itself does not create a hostile environment. However, derogatory language of any type, if motivated by gender bias, can do so. Abusive language, not only sexual innuendo or gender-related language, can create an actionable hostile working environment.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088.
