Among the many problems that arise in sexual harassment cases are attacks on witness credibility as a result of the subject matter. Specifically, it's not uncommon to see embarrassing questions at deposition or in court about people's sexual histories, their sexual partners (in particular, their coworkers), their own viewing of pornography, participation in off-color activities, etc. These inquires, usually directed at the coworkers, but occasionally at the plaintiff, are arguably "relevant" in order to show that a person was not offended by some crude sexual come on or picture, or that they willingly participated in the conduct they are now claiming was problematic, or to support the hostile work environment claim. Obviously, eliciting this information in a public forum can be a powerful deterrent to proceeding further with the litigation, or an incentive to quickly settle the case.
But there are limits, and a recent Ohio state court opinion demonstrates this pretty clearly.
Three female employees sued their car dealership employer for sexual harassment, along with civil assault and battery, retaliation and intentional infliction of emotional distress, among other things. They alleged the usual litany of boorish and inappropriate behavior -- see my previously posted comments on the totally unoriginal conduct of sexual harassment defendants. At trial, the defense sought to introduce evidence about one woman’s piercings and sexual promiscuity, ask about the voluntary presence in a strip club of another female plaintiff, and question the third about a videotape she made depicting her engaging in sex acts with her husband.
Although objected to initially, the attorneys for the women did not object at trial to questions about piercings, tattoos and sexual promiscuity. Specifically, the defense called one plaintiff's mother who testified about her daughter's piercings and tattoos and gave an opinion about her promiscuity--some parents have far too much knowledge about their adult kids’ activities. The dating history of the other two plaintiffs was also reviewed without objection. The failure to object not only means the evidence comes in, but that it can't be made the subject of an appeal. But I cannot understand how this testimony could even have passed a smell test for relevance given the facts of the case.
The plaintiff's lawyer apparently found her voice when one of the women was asked about whether she had ever visited a strip club. The trial court also allowed this question to go forward (the plaintiff had, in fact, visited a club). The appellate court upheld the trial court's ruling on the grounds that the woman in question claimed as part of her hostile work allegation that strippers entered the workplace during working hours and created an "uncomfortable atmosphere." The court allowed the question, holding that the woman's having been in a strip club on her own time and with people of her own choosing undermined her statement that she would feel uncomfortable at work in the presence of strippers. So the company’s defense was not that strippers weren’t there, but that the victim couldn’t be offended because she’d seen exotic dancers (to use the Duke lacrosse case vernacular) before. Yikes.
It apparently never occurred to either of the courts that conduct welcome in an off-duty, non-work setting among the presence of family or friends might be grossly inappropriate and uncomfortable when observed in the workplace. I think this is an astounding evidentiary slip that created all kinds of fair trial issues for this particular plaintiff.
The appellate court finally woke up, however, in reviewing the sex tape issue. One of the women had been filmed by her husband, without her knowledge, in their bedroom together. Incredibly, the trial court allowed the questioning of the female witness concerning this episode, apparently on the theory that the fact that the plaintiff made a sexually-oriented tape with her husband somehow proved that she would not be offended at the sight of pornography in the workplace. This ruling allowed the defense to inform the jury during opening statements that the plaintiff starred in a “pornographic film.”
Using logic that would have applied equally to the stripper situation had it been thinking clearly, the appellate court noted that the defense's argument on the videotape "would allow a complete stranger to pursue sexual behavior at work that a female worker would accept from her husband or boyfriend." The appellate court reversed the trial court's finding and ruled that the videotape had no relevance to any issue in dispute. The court remanded the case for retrial.
The case is Conti, et al. v. Spitzer Auto World Amherst, Inc., 2008 Ohio - 1320; No. 07 CA 009121 (Ohio App. 9th Dist. March 24, 2008).