Friday, October 23, 2009
You've Got Mail: Eastern District Of Pennsylvania Finds Plaintiff's E-Mails Admissible In Sexual Harassment Case Despite Rape Shield Rule
A woman sues her employer, claiming, inter alia, sexual harassment based on an arguably hostile work environment. Specifically, she claims that her superior stared at her breasts on two separate occasions and made the following comment to her, with regard to a dessert, in front of her colleagues, including her superiors, at a work-sponsored dinner: "I heard it's really good if you go down deep, into the chocolate, with your berry." Should the employer be able to present evidence of e-mails sent by the plaintiff to a non-work friend from her work account, which, according to the court itself, contained sexual "jokes and stories about generic topics, made-up characters or representative figures (e.g. Santa Claus)"?
According to the recent opinion of the United States District Court for the Eastern District of Pennsylvania in Seybert v. International Group, Inc., 2009 WL 3297304 (E.D.Pa. 2009), the answer is "yes." I strongly disagree.
The facts listed above (among others) were the facts in Seybert. The judge noted that the plaintiff's e-mails were covered by the rape shield rule, meaning that they were only admissible if they fell under the exception contained in Federal Rule of Evidence 412(b)(2), which states that
In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.
So, what was contained in the plaintiff's e-mails? Well, the court only explains one. According to the court, the plaintiff e-mailed to her non-work friend "a photograph of an elderly man wearing only a Santa hat and boots, resting on his stomach, with the caption, “Just Roll Me Over Darlin...'cause I'm Layin On Yer Present."" You can view a copy of the photo by clicking this link. According to the court, "[t]he remaining emails containing sexual content all make similar attempts at humor."
So, why did the court find that these e-mails were admissible? Well, according to the court,
Here, the emails with sexual content involve the same general type of humor as [the superior's] comment at the Recognition Dinner-a humor rooted in sexual innuendo and supposed euphemisms. For instance, [the superior's] alleged comment about going "down deep into the chocolate [dessert] with your berry" presumably could be likened to...[the Santa phooto]....In both cases, creative imagery and base sexual wordplay are being used to construct metaphors in an apparent attempt to titillate, amuse, entertain, instruct, or simply "gross out" (in the phrase of some generations)others.
Moreover, the court found that by exchanging the Santa e-mail and other e-mails,
Mrs. Seybert may have been sanctioning the humor that the emails contained-a humor that may be found to be similar to the supposed humor underlying [her superior's] comment at the Recognition Dinner. Accordingly, IGI is entitled to pursue the argument that the emails are relevant to Mrs. Seybert's possible appreciation of this type of humor, and specifically, whether she was subjectively offended by [her superior's] comment. The risk of prejudice here is low, given that the emails mostly contain jokes and stories about generic topics, made-up characters or representative figures (e.g. Santa Claus). They do not bear on Mrs. Seybert's own sexual history or personal sexual conduct, but only on the issue of whether she appreciates or is offended by possibly crass sexual humor in the workplace. Therefore, the Court cannot conclude that the emails are inadmissible at this time, at least with respect to the issues presented at thus juncture.
Here are my thoughts. As noted, before admitting evidence under Federal Rule of Evidence 412(b)(2), courts must determine that its "probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party." As is clear from the above block quote, the court considered the "risk of prejudice" to the plaintiff, i.e., the risk that her action would be unfairly decided based upon the admission of the e-mails.
The court, however, failed to address the danger of harm to the plaintiff. As the Advisory Committee Note to the Rule indicates, by adding the danger of harm to the analysis, "[t]he rule aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process."
So, let me conduct my own analysis. First, disclosing the plaintiff's e-mails in open court seems to me to be a serious invasion of her privacy. And second, by the court's own admission, the plaintiff's e-mails contained sexual innuendo." Clearly, then, the e-mails had a significant potential to cause the plaintiff embarrassment and to lead the jury engaging in stereotypical thinking. This being the case, the e-mails needed to have extremely high probative value for that value to substantially outweigh the danger of harm to the plaintiff.
They clearly didn't. First, quite simply, I don't see how the Santa photo is even remotely in the same league as the comment that the superior made at the dinner. Indeed, according to the court itself, the plaintiff's emails mostly contained jokes and stories about generic topics, made-up characters or representative figures" and nothing about herself. Meanwhile, the superior's comment was a crass comment directed at the plaintiff.
That leads to my second point. How could a plaintiff's e-mail to a friend concerning a sexual juke indicate that she condones the making of crass comments to her by a superior in front of other employees? I could e-mail my friend that it was funny when Michael Scott obliviously made a racist remark on The Office, but that doesn't mean that I would condone my boss making such a comment at the workplace. So why in this case did the court presume that sexual jokes of a general nature shared by the plaintiff to her friend meant that she condoned a crass comment made to her by her superior at work?