“Me Too” Evidence of Discrimination Admissible to Prove Discriminatory Intent in Sexual Harassment/Sex Discrimination Cases

Ms. Panjota, as well as a number of other women, had the bad fortunate of working for an employment lawyer, Mr. Anton, who should have known better. One must wonder how Mr. Anton got any work done, given that this case makes it look like every moment of his work day was spent spewing vile epithets at his female staff, as well as pulling the elastic on a female employee’s underwear and asking an employee to wear see through clothes.

During the trial of this case, Ms. Panjota’s lawyers tried, over and over again, to present to the jury the ample evidence that Mr. Anton’s obscene and abusive conduct and statements were based on his discriminatory feeling s towards women. Besides presenting Ms. Panjota’s own riveting testimony, Ms. Panjota’s lawyers also wanted to present “me too” evidence, i.e. evidence regarding the manner in which Mr. Anton treated other female employees. Over and over again, the Kern County trial judge refused to admit a wide variety of “me too” evidence, even though Ms. Panjota explained that the evidence was to establish Mr.Anton’s (discriminatory) state of mind. Panjota v Anton, ___ Cal.App.4th ___ ( August 9, 2011).

Thank goodness Ms. Panjota’s counsel did not give up, and created a good fact record. This permitted the Court of Appeals to understood the errors of the lower court’s ways. The Court of Appeals held, in a 54 page opinion, that this “me too” evidence should have been admitted because Anthon’s intent was at issue, and the way Anton treated and spoke to other female employees shed light on whether his intent was discriminatory or merely rude and disgusting.

The Court of Appeals aptly explained that, “Anton’s case was premised on the claim that his frequent use of profanity at a loud volume was always directed at situations, not people; it happened in the present of men as well as women; and Anton would never have tolerated harassing behavior by anyone in his office, let alone perpetrated it himself.” Given that this was Anton’s case (or his defense, so to speak), the court ruled that he opened the door to this “me too” evidence “to rebut claims made by defense witnesses”, and that the evidence was relevant to “show that he harbored a discriminatory intent or bias based on gender” and to “impeach his credibility”. What were they ( a lawyer who harassed his staff in such a blatantly sexist way, and a trial judge charged with making fair evidentiary rulings) thinking?

At least the Court of Appeals was thinking. It understood that Anton’s state of mind towards his female employees could help prove that the hostile environment in which Ms. Panjota worked was sex-based and that the reason she was fired was due to her sex. Now, Mr. Anton has the opportunity to show what he should be thinking by offering up a substantial sum of cash to Ms. Panjota before he is forced to go back and face a jury which will hear the full story!

Jody LeWitter
August 30, 2011