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Employment Law Update: Evidence of Discriminatory Intent

In a decision handed down on August 9, 2011, the Fifth Appellate District of the California Court of Appeal held that evidence regarding alleged inappropriate gender-related behavior directed toward female co-workers of the plaintiff (which occurred outside the plaintiff’s presence, and of which the plaintiff was unaware) was admissible in support of plaintiff’s claims that she was sexually harassed and wrongfully terminated because of her gender.

Office Employment DiscriminationIn Pantoja v. Anton, the plaintiff filed a Superior Court Complaint against her former employer for sexual harassment and gender discrimination. Pantoja alleged she was subjected to a hostile work environment and then wrongfully terminated because of her gender. At trial, the judge granted defendant’s motion to exclude evidence of alleged inappropriate conduct directed at other female employees. The judge ruled that the conduct was not admissible because it did not occur in plaintiff’s presence and, as such, could not have affected her personally.

The jury ultimately found in the defendant’s favor and Pantoja appealed, arguing that the trial court erroneously excluded the so called “me too” evidence of discrimination and sexual harassment and that this exclusion was prejudicial toward plaintiff.

The appellate court ruled in the plaintiff’s favor. The Court explained that, although the conduct did not take place in the plaintiff’s presence, such evidence was admissible in order to establish the defendant’s discriminatory intent. The Court noted that the Fair Employment and Housing Act, which prohibits employment discrimination and harassment, is “not designed to rid the workplace of vulgarity.” In this instance, however, the Court found that the defendant’s conduct directed at other female employees could provide evidence of the defendant’s discriminatory intent or motive (gender bias) under the evidence code.

Pantoja provides a classic example of an employer exhibiting a pattern of discriminatory behavior in the workplace directed at a particular type of employee (in this case, females). If you believe you have been subject to sexual harassment or discrimination in the workplace, and particularly if your co-workers have described similar experiences, you should contact Advantage Law Group and arrange for a consultation to discuss your employment law claims in our offices in San Diego, Orange County or San Francisco.

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