Erroneous evidentiary rulings in sexual harassment case warrant new trial, appellate court says

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A recent California Court of Appeal decision stresses the importance of evidentiary rulings in jury trials, and it demonstrates what types of evidence may be found admissible (or inadmissible) in sexual harassment cases. In Meeks v. Autozone Inc. et al., a female employee sued her employer and one of its managers for claims of sexual harassment, failure to prevent sexual harassment, and retaliation in violation of the Fair Employment and Housing Act. The employee, a manager, alleged that she had been harassed by another manager over an extended period of time and that, when she complained, she was threatened with termination if she did not “squash” her complaint. The trial court dismissed the employee’s retaliation claim, finding that no reasonable juror could find in the employee’s favor, and the jury returned verdicts for the employer on the remaining causes of action.

The Evidentiary Rulings

In reviewing the case on appeal, the court of appeal considered the following evidentiary rulings and reached the following conclusions:

Testimony regarding text message content should have been admissible

Prior to trial, the employee alleged that the harasser sent her sexual text messages, but she no longer had the text messages in her possession. The trial court prohibited the employee from testifying regarding her recollection of the contents of the messages, other than general statements that the text messages were sexual in nature. The appellate court found the trial court’s limitation erroneous, on multiple bases. First, under Evidence Code section 1523, oral testimony may be admissible to prove the content of a writing if certain conditions are met; the court found that this rule did not bar the admission of the employee’s testimony regarding the texts. Second, the trial court’s reasoning that it was trying to avoid “pure speculation” about what was in the text messages “vitiate[d] the rule stated in section 1523,” according to the appellate court. Third, the appellate court found that the court did not adequately consider alternatives to the plaintiff testifying about the word-for-word content of the text messages, such as whether to allow the plaintiff to testify about other aspects she recalled, including the impact the messages had on her or any media that was attached to the messages.

Moreover, the appellate court disagreed with the defendants that they had no ability to challenge the veracity of the employee’s testimony, as the individual defendant was not prevented from giving his own oral testimony about the text messages. Lastly, the appellate court rejected the defendants’ contention that the texts constituted inadmissible hearsay, finding that testimony regarding the text messages was not being offered as evidence of what the text messages actually said or showed, but rather as evidence that the messages sent were both objectively and subjectively offensive, to establish one of the elements of plaintiff’s harassment claim.

Trial court did not err in excluding evidence of harassment of another employee by another manager

Prior to trial, the lower court granted the employer’s motion to exclude any testimony regarding instances of alleged harassment of and retaliation against a former female employee. The former employee had alleged that she was retaliated against for reporting harassment by her store manager, who was not involved in plaintiff’s lawsuit. Though the appellate court said that this evidence would tend to support the employee’s argument that there was a “climate of bias” and a “general attitude of disrespect toward…female employees,” it found that it was not beyond the bounds of reason for the trial court to conclude that the beneficial value of this evidence was outweighed by the probability that its admission would require an undue consumption of time and risk confusing the issues for the jury. In reaching this conclusion, the appellate court noted that the plaintiff had no personal knowledge of the alleged harassment of and retaliation against the former employee, and the employer would not have been able to challenge the veracity of what the plaintiff had heard about the other manager’s behavior or about the employer’s response to the former employee’s complaint.

Evidence of individual defendant’s conduct towards other employees should have been admitted

The trial court made multiple clear errors in excluding testimony relating to the individual defendant’s conduct towards other female employees. First, even though the individual defendant testified that he had exchanged sexual jokes with other employees, the trial court instructed the jury to disregard any of his testimony unless it pertained to the plaintiff. Second, the trial court instructed the jury to disregard testimony from the manager that he had “accidentally” sent a sexual text to another female employee when considering the allegations made against him individually. Third, a female witness was prohibited from testifying regarding conduct by the manager against her outside the plaintiff’s presence. Fourth, the trial court precluded testimony in its entirety from witnesses who would have testified about the manager’s inappropriate conduct towards them or inappropriate behavior that had been observed by the individual defendant against another employee.

California case law clearly states that evidence of gender bias against employees other than the plaintiff (i.e., “me too” evidence) may be admissible in discrimination and harassment cases. The appellate court found that the trial court was incorrect to conclude that evidence of the individual defendant’s behavior outside the plaintiff’s presence was inadmissible. Moreover, the manager specifically disputed that his behavior was motivated based on sex, saying he treated female and male employees equally. Thus, the plaintiff was entitled to prove otherwise, including through “me too” evidence.

Evidence regarding plaintiff’s tattoo was admissible, but a photograph of the tattoo was not

At trial, the manager testified that the employee shared intimate information with him and showed him on her body where she planned to get a tattoo (on her lower abdomen, below her belly button). Plaintiff testified that she had gotten the tattoo in question years before the alleged conversation with the individual defendant was said to have happened. The trial court allowed testimony by the manager regarding the details of the alleged intimate conversations, and the trial court also allowed the defense to introduce a photograph of the employee’s tattoo into evidence.

First, the appellate court found that it was not beyond the bounds of reason for the trial court to conclude that the manager’s testimony was relevant. Under the law, in order to show that a hostile work environment was not subjectively hostile, a defendant may assert that plaintiff consented to the conduct through active participation and was not injured because the plaintiff did not subjectively find the conduct abusive. The appellate court said that the manager’s testimony supported his defense, and it was not so inherently prejudicial or inflammatory to require exclusion.

On the other hand, the appellate court found that the trial court abused its discretion by permitting the defense to publish a photo of the tattoo to the jury. Since the plaintiff did not deny having the tattoo, the photograph was not necessary to impeach her testimony. Thus, the photograph should have been excluded under Evidence Code section 1106(a), which generally prohibits opinion evidence, reputation evidence, and evidence of specific instances of plaintiff’s sexual conduct in order to prove consent by the plaintiff or absence of injury to the plaintiff.

Documents from investigation leading to manager’s termination were properly excluded

The trial court excluded the admission of the employer’s investigation documents, which included unsworn witness statements. The trial court said the documents contained hearsay evidence and could only be used for impeachment or rehabilitation of a witness. The court also said that the documents were inadmissible under Evidence Code section 352 since their probative value was outweighed by the risk that the documents would require an undue consumption of time and would confuse the issues.

On appeal, the employee did not contest the trial court’s finding regarding Section 352, so the appellate court treated that argument as waived. However, even if it had not been waived, the appellate court did not think that the trial court exceeded the bounds of reason in reaching its conclusion in excluding the documents under Section 352.


  • What may be most alarming to employers is the court’s decision that testimony regarding text messages that were not preserved by the plaintiff was nonetheless admissible. As always, the best thing that an employer can do to avoid being in this situation is to provide thorough sexual harassment and sexual harassment prevention training and to take complaints of sexual harassment seriously. This should include asking an employee making a complaint if there are any witnesses to the harassment, interviewing any witnesses, and asking if there are any documents or other evidence, such as text messages, showing the harassment.
  • The “me too” doctrine is alive and well in California, but this doctrine does not necessarily extend to evidence of harassment or discrimination by someone other than the individual accused of harassment in the plaintiff’s lawsuit. However, nothing in the appellate court’s conclusion prevents a trial court from admitting evidence of harassment or discrimination by someone other than the alleged harasser, so it is a possibility depending on the case.
  • Though it may be tempting to introduce evidence that could inflame a jury (such as a photograph of a scandalous tattoo), defendants should consider whether the admission of such evidence could lead to grounds for a new trial on appeal and decide whether its introduction is worth the risk.

After the onslaught of “me too” legislation recently passed in Sacramento, these issues are now making their way through the courts, and the cases interpreting these issues are not likely to end any time soon.