• Kevin Salute

Who’s the Perpetrator? The Use of Opinion, Reputation, and Sexual History in Sex Harassment Cases

Sex harassment cases generally take two forms. One form is where a supervisor is engaging in unwanted sexual conduct with the employee. Another form is where a non-supervisory co-worker engages in some kind of unwanted sexual conduct with the employee. More often than not, when these cases are litigated, the defense brings forth some evidence that the plaintiff engaged in some type of innuendo, banter, jokes, or conversations about past relationships with a co-worker. The question then arises whether this evidence is admissible in court or in an arbitration hearing.

This was one of the issues raised on appeal in the case of Rieger v. Arnold, 104 Cal.App.4th 451 (2002). Rieger worked for a law firm. She filed an action for sexual harassment against the attorney, the office manager, and the law firm. The case went to trial.  She won. She was awarded $15,000 in damages. The law firm filed a post trial motion asking the trial judge to vacate the jury award. The trial judge agreed and entered judgment in favor of the law firm. Rieger appealed.

On appeal, the Court of Appeals had to decide whether the trial judge was correct in allowing the jury to hear evidence of Rieger’s prior sexual conduct. More specifically, the Court of Appeals had to decide whether the trial judge should have allowed admission of evidence that Rieger freely talked with the office manager about intimate sexual matters and their relationships. The evidence further showed that she told sexual jokes and make sexual comments in the office manager’s presence. 

Rieger argued that such evidence was made inadmissible by California Evidence Code section 1106. This section specifically excludes opinion evidence, reputation evidence, and evidence of specific instances of the plaintiff’s sexual conduct, or any of that evidence, in order to prove consent by the plaintiff or the absence of injury to the plaintiff.  The law firm, however, argued that the evidence was admissible under section 1106 because it was evidence of Rieger’s sexual conduct with the alleged “perpetrator.” The Court of Appeals, therefore, had to determine what constitutes sexual conduct and then interpret what was meant by the word “perpetrator.” 

The Court of Appeal held that testimony regarding plaintiff’s racy banter, sexual horseplay, and statements concerning prior, proposed, or planned sexual exploits were all sexual conduct under section 1106. Therefore, this evidence cannot be admitted to rebut claims that the environment was abusive or unwelcome, except if it involved a perpetrator. Next, the Court of Appeal held that such evidence is admissible if it involved the individual defendants or others whose conduct the plaintiff ascribed to the employer regardless of whether it occurred in or outside the workplace. Based on that analysis, the Court of Appeal allowed admission of evidence involving sexual conduct between the alleged harassers and the plaintiff but excluded all other evidence of sexual conduct.

In her lawsuit, Rieger had accused the office manager, an attorney, and the law firm of sexual harassment and creating or fostering a hostile work environment in violation of the California Fair Employment and Housing Act (FEHA).  Under FEHA, an employer can be directly liable for sexual harassment. An employer can also be indirectly liable for the actions of its agents and supervisors or for the actions of its non-supervisory employees if it was or should have been aware of them and did not take remedial measures. Because she sought to hold the employer responsible for the actions of certain individuals, evidence of her interactions with those individuals was properly admissible. 

Conclusion

Prior sexual conduct of an employee is generally not admissible to prove lack of consent or damages in a sex harassment case. However, where an employee tries to show that there existed a hostile work environment caused by several harassers, such evidence may nevertheless become admissible. The definition of “perpetrator” under section 1106 has been expanded. This expanded definition allows a trial court to admit evidence of “sexual conduct” between the plaintiff and both a named defendant and any other person for whom a plaintiff would hold a named defendant liable.

Questions:

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Disclaimer: The foregoing is provided for informational purposes only, is not an advertisement, does not constitute legal advice or legal opinion, and does not create an attorney-client relationship. The content may not apply to the specific facts or a particular matter. You should not act or rely on any information contained in this article without first seeking the advice of an attorney licensed to practice in your jurisdiction.

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