Before Harvey Weinstein and the #MeToo hashtag gave way to a rising tide of sexual harassment victims coming forward with their stories, the “me too” phrase was coined in a legal case called Pantoja v. Anton. In Pantoja v. Anton, the stories of other victims of sexual harassment by the same harasser were excluded from evidence by the trial court, which found them irrelevant. Fortunately, the Court of Appeal reversed in a significant legal ruling.
Lorraine Pantoja, a former employee of attorney Thomas Anton, sued Anton and his firm for sexual harassment. Pantoja alleged that during her employment, Anton slapped and touched her buttocks, touched her leg while offering her $200, asked for a shoulder massage and called her a “stupid bitch.”
A key issue at trial was whether Pantoja could introduce evidence from other former employees who allegedly suffered similar harassment by Anton – including allegations that Anton leered at women’s buttocks frequently, pulled the elastic of a female employee’s bra to read the label, told the same employee to wear see-through clothing, and patted female employees on their buttocks and thighs more than once. Pantoja admitted that she did not witness the alleged “me too” evidence and thus it did not affect her work environment. The trial court initially ruled this evidence to be inadmissible character evidence, unless Pantoja “personally witnessed such acts” and the acts “adversely affected her working environment.” (The rules of evidence normally prohibit the introduction of evidence of a person’s character or trait when offered to show that the person has a propensity to act in conformance with the character evidence.) Pantoja’s attorney repeatedly sought to introduce the “me too” evidence not as “character” evidence, but to show that Anton had a discriminatory intent and to rebut Anton’s testimony that he never engaged in any harassing conduct. The trial court rejected the “me too” evidence each time, because the evidence neither involved events that took place while Pantoja was employed nor affected her work experience. The jury rejected Pantoja’s claims, and she appealed.
The Court of Appeal agreed with Pantoja that exclusion of the “me too” evidence was unfairly prejudicial. Evidence that Anton harassed other women outside of Pantoja’s presence could have shown the jury that he harbored a discriminatory intent or bias based on gender. Further, admission of the evidence would have allowed the jury to evaluate the credibility of Anton and other defense witnesses who stated that Anton did not use the words Pantoja claimed and did not have a discriminatory intent. In reversing the trial court, the Court of Appeal held that the probative value of the evidence was “unquestionable.”
Ironically, the term “me too” has been used by defendants in sexual harassment cases as a term of mockery. Plaintiff’s lawyers often shied away from the “me too” label, preferring to call refer to this as “other victim” evidence.
Thankfully, #MeToo hashtag has destigmatized the “me too” label in these cases. Most importantly, victims of sexual harassment, with the support of a larger community, are finding the courage to report what happened to them. Kudos to social media as a force of change.