Wednesday, March 26, 2008

Plaintiff's history of homemade porn is not fair game in harassment suit


Whether or not a plaintiff was subjectively offended by an alleged hostile environment is a key element of proving any sexual harassment claim. One would think, then, that if a plaintiff is claiming that she was a offended by being subjected to porn in the workplace, it would be fair to cross examine her on her own history of home-made porn movies. No so, however, according to the Lorain County (Ohio) Court of Appeals, in Conti v. Spitzer Auto World Amherst, Inc.

Kristina Conti and two co-workers claimed that they were subjected to a sexually hostile work environment while employed at Spitzer Auto World. They claimed that two male sales managers subjected them to near-daily sexual harassment, including forcing them to view pornography on their computers, rubbing up against them from behind and touching their buttocks, and routinely questioning them about the color and type of their underwear, their private sex lives, and their interest in different sexual positions.

Spitzer's counsel engaged in following Q&A with Conti at trial, in an attempt to show that she could not have been personally offended by such conduct:

Q. Well, I hate to have to ask you this. But did viewing your videotape refresh your recollection as to whether you knew that adult film was being made? ...

A. You're asking how I felt about it?

Q. No ma'am. I'm asking you, isn't it true you knew it was being filmed?

A. I did not know it was being filmed.

Q. You would agree with me it was an adult film, correct?

A. Yes.

Q. And you would agree with me, you were in it, correct?

A. Yes....

Q. You would agree with me at the very end of the tape, Ms. Conti, you said, "Should I turn this thing off now," didn't you?

A. I don't know exactly, but my recollection of what I said was something along the lines that this thing better be off, or turn this thing off.

The court of appeals ruled that the trial court abused its discretion in allowing that line of questioning. The court found that the evidence should have been excluded because it was not relevant to the harassment. It reasoned that permitting cross examination of a plaintiff about a sex tape she made with her husband does not tend to prove that she welcomes the sight of pornography at work. It may prove that she likes privately to film her and her husband having sex, but it does not prove that she welcomes sexual advances from a coworker or viewing porn starring people other than her and her husband.

There is something viscerally appealing about cross examining a sexual harassment plaintiff concerning her home videos. Yet, I get the point that what one does in the privacy of one's home with one's spouse doesn't necessarily translate to the same level of comfort with one's coworkers. At the end of the day, I think the court in this case got it wrong. More so in sexual harassment cases than any other type of employment case, credibility is key. In a he said/she said scenario, the jury has to be able to evaluate which party is more likely to be stretching the truth. If a plaintiff makes home pornos, can't a jury conclude that she is less likely to find pictures of other people having sex offensive? Shouldn't the jury have the right to evaluate her credibility in light of her obvious lack of prudishness? Certainly the evidence is relevant to her subjective state of mind in her level of offense at the porn. The question is how relevant, and whether it is simply too prejudicial. The trial court felt that it was not too prejudicial and admitted it, and the appellate court went too far in overruling that evidentiary ruling.

I'm curious to see if this case get retried, and if it comes out differently with Ms. Conti's home movies no longer before the jury.

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