Weekly Law Resume - September 12, 2011 - Employment Law — Admissibility Of "Me Too" Evidence


Lorraine Pantoja v. Thomas J. Anton, et al. Court of Appeals, Fifth District (August 9, 2011)

Under California Evidence Code section 1101, "character" evidence relating to a person's character or character trait is inadmissible to prove his or her conduct on a specific occasion. However, under this section "character" evidence is admissible to prove some other fact in issue, such as the person's intent or state of mind. In Johnson v. United Cerebral Palsy/Spastic Children's Foundation (2009) 173 Cal.App.4th 740, the Appellate Court concluded that in a case for employment-related discrimination and harassment, evidence of discrimination or harassment experienced by other employees ("me too" evidence) could be admissible under Evidence Code section 1101 to show a defendant employer's discriminatory intent. This case affirmed that rule while holding that "me too" evidence is admissible even if it did not specifically concern incidents that occurred while the plaintiff was present or had specific knowledge of.

Plaintiff Lorraine Pantoja was an employee of defendant, attorney Thomas Anton, and his law firm Thomas Anton & Associates. According to Ms. Pantoja, Mr. Anton sexually harassed her during her 10-month long employment by inappropriately touching her; using sexually charged language including obscene language in her presence; and calling her a "stupid bitch" before firing her. She also alleged that Mr. Anton referred to his employees, some of whom were Hispanic, as "my Mexicans." Ms. Pantoja alleged race and gender discrimination and harassment in violation of California's Fair Employment and Housing Act ("FEHA"), wrongful termination, battery, and intentional infliction of emotional distress.

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