Pantoja v. Anton

In Pantoja v. Anton, a California Court of Appeal (Fifth Appellate District) overturned a trial court’s decision to exclude “me too” evidence presented by the plaintiff; that is, testimony from other employees that the person accused of sexual harassment also harassed them.


The appellate court found the lower court improperly excluded evidence of the defendant’s alleged gender bias, which took the form of harassing activity against female employees other than the plaintiff. The appellate court concluded that the evidence should have been admitted to attempt to prove discriminatory or biased intent or motive, as permitted by California Evidence Code § 1101(b), even though the excluded “me too” evidence related to alleged harassment that occurred outside the plaintiff's presence and when she was not an employee.

Pantoja v. Anton is undoubtedly a pro-employee decision. In fact, the appellate court’s expansive view of the admissibility of “me too” evidence should alarm California employers because it allows plaintiffs in sexual harassment cases to introduce evidence of unrelated incidents that did not occur in the plaintiff’s presence. The Pantoja court’s holding is inconsistent with prior court rulings that harassment against others in the workplace is only relevant if the plaintiff had personal knowledge of the harassment at the time it occurred. See Beyda v. City of Los Angeles (1998) 65 Cal.App.4th, 511, 520. The introduction of this type of “me too” evidence at trial creates a significant risk that jurors may be pre-disposed to judge the defendant by his or her “bad acts” in the past, separate and apart from the impact on the plaintiff’s work environment in the present.

From a risk management standpoint, the Pantoja decision also calls into question an employer’s ability to retain a manager with a history of sexual harassment complaints – even if prior complaints were resolved to the satisfaction of both the manager and the accuser.

At a minimum, Pantoja serves as a reminder of the importance of proactive training on the prevention of sexual harassment, and taking prompt corrective action to address acts of sexual harassment in the workplace.