©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 185 A 2018 Court of Appeal decision324 further illustrates California’s leniency about admitting evidence relating to sexual harassment. The jury rendered a verdict for the employer, but the Court of Appeal reversed and ordered a new trial on the ground that the trial court had erred on certain evidentiary issues. The Court of Appeal held that the plaintiff should have been permitted to testify about details of sexual electronic messages she had received from the alleged harasser even though she had since lost the messages, the trial court should have admitted “me too” testimony from four co-workers, all also allegedly harassed by the alleged harasser, who could present evidence going to his gender bias, and the trial court erred in admitting evidence that plaintiff had published on social media her abdominal tattoo, because that display was not “sexual conduct” with the alleged harasser and therefore was rendered inadmissible to show the plaintiff’s consent to allegedly unwelcome sexual conduct.325 “Me too” evidence does have limits, even in California, where courts have limited the extent of such evidence to facts showing discrimination sufficiently similar to what the plaintiff allegedly suffered. Thus, one plaintiff, who alleged Asian and Japanese ancestry, permissibly was denied the chance to show that his Arab employer discriminated against all non-Arabs. The plaintiff could present evidence that other employees of East Asian or Japanese descent had experienced similar discrimination, but not that the employer had discriminated against non-Arabs generally.326 Further, while “me too” evidence may be admitted to show intent or motive with respect to the plaintiff’s own protected class, it is “never admissible to prove an employer’s propensity to harass.”327 1 Gov’t Code §§ 12926(d), 12940(j)(4)(A). 2 42 U.S.C. §§ 2000e, 2000e(b); 29 U.S.C. § 630(b). 3 Gov’t Code § 12940(c) (unlawful to “discriminate against any person [on any of the protected bases] in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person”). 4 42 U.S.C. § 1981(a)(b)(3); Vaughan v. Anderson Reg’l Med. Ctr., 849 F.3d 588, 594 (5th Cir. 2017); Comm’r of Internal Revenue v. Schleier, 515 U.S. 323, 326 (1995). 5 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). 6 Id. 7 AB 9, 2019 bill amending Gov’t Code §§ 12960, 12965 and reenacting a bill Governor Brown vetoed in 2018. The extended deadline for filing does not revive lapsed claims. Filing a complaint means filing an intake form with the DFEH, with the operative date of the verified complaint relating back to the filing of the form. 8 42 U.S.C. § 2000e-5(e)(1). 9 See Gov’t Code §§ 12965(b). 10 See 42 U.S.C. § 2000e-5(f)(1). 11 42 U.S.C. § 12102(1)(A). 12 Bagatti v. Dep’t of Rehab 97 Cal. App. 4th 344, 360-61 & n.4 (2002).. But see Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 972-75 (2008) (disagreeing with Bagatti). 13 42 U.S.C. §§ 12112(a), (b)(5)(A). 14 Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., 555 U.S. 271, 129 S. Ct. 846 (2009). Note, though, that in dictum the Supreme Court said that oppositional activity may consist of staying put and refusing to implement an unlawful order to discriminate. Extending protection for oppositional activity that far would not differ materially from the California standard. 15 McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88 (2008) (plaintiff’s voluntary pursuit of internal administrative remedy will toll running of statute of limitations on FEHA claim, even if plaintiff voluntarily abandons the internal proceeding). 16 See Johnson v. Ry. Express Agency, 421 U.S. 454 (1975). 17 Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 135 (1st Cir. 2004); Huseein v. Waldorf Astoria, 134 F. Supp. 2d 591, 599 (S.D.N.Y. 2001); EEOC v. Sambo’s of Ga., Inc., 530 F. Supp. 86, 91 (N.D. Ga. 1981). 18 Cloutier, 390 F.3d at 134 (citing Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 64 (1977)). 19 Harris v. City of Santa Monica, 56 Cal. 4th 203, 211 (2013) (plaintiff who proves a protected status was a substantial motivating factor for an adverse employment action can thereby obtain declaratory relief, injunctive relief, and reasonable attorney fees and costs, although the
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