In a troubling case for employers, a California court of appeal held in Pantoja v. Anton that it was prejudicial error for a trial court to exclude so-called "me too" evidence of sexual harassment of other employees.

Lorraine Pantoja, a former employee of attorney Thomas Anton and his professional corporation, sued Anton and his firm for alleged sex discrimination and sexual harassment in violation of the California Fair Employment and Housing Act. Pantoja alleged that during her employment, Anton slapped and touched her buttocks, touched her leg while offering her $200, asked for a shoulder massage and called her a "stupid bitch."

A key issue at trial was whether Pantoja could introduce evidence from other former employees who allegedly suffered similar harassment by Anton – including allegations that Anton leered at women's buttocks frequently, pulled the elastic of a female employee's bra to read the label, told the same employee to wear see-through clothing, and patted female employees on their buttocks and thighs more than once. Pantoja admitted that she did not witness the alleged "me too" evidence and thus it did not affect her work environment. The trial court initially ruled that such evidence was inadmissible character evidence, unless Pantoja "personally witnessed such acts" and the acts "adversely affected her working environment." (Generally, the rules of evidence prohibit the introduction of evidence of a person's character or trait when offered to show that the person has a propensity to act in conformance with the character evidence.) Pantoja's attorney repeatedly sought to introduce the "me too" evidence not as "character" evidence, but to show that Anton had a discriminatory intent and to rebut Anton's testimony that he never engaged in any harassing conduct. The trial court later reaffirmed its earlier ruling and determined that the evidence was not admissible to prove Anton's intent or to impeach his testimony, because the evidence neither involved events that took place while Pantoja was employed nor affected her work experience. The jury rejected Pantoja's claims, and she appealed.

A court of appeal reversed and agreed with Pantoja that the exclusion of the "me too" evidence was unfairly prejudicial. The court concluded that evidence that Anton harassed other women outside of Pantoja's presence could have assisted the jury not by showing that Anton had a propensity to harass women, but by showing he harbored a discriminatory intent or bias based on gender. Further, admission of the evidence would have allowed the jury to evaluate the credibility of Anton and other defense witnesses who stated that Anton did not use the words Pantoja claimed, did not direct profanities at Pantoja and did not have a discriminatory intent. The court stated that the probative value of the evidence was "unquestionable," and that any possible prejudicial effect of its introduction could have been mitigated by a limiting instruction to the jury.

The court's very broad view of the admissibility of "me too" evidence is alarming for employers. Not only does the decision have the potential for significantly expanding discovery in sexual harassment cases, it represents a significant hurdle to summary judgment dismissal before trial. Moreover, the introduction of "me too" evidence at trial creates a significant risk of juror confusion. Finally, this decision amplifies the importance of proactive training on preventing sexual harassment, and taking swift corrective action when harassment occurs.