Tuesday, April 8, 2008

Existence of Sex Tape with Husband Shouldn't Impact Sexual Harassment Claim

Stripperbear Here's a sexual harassment case from the state appellate court in Ohio (courtesy of CCH Work Week) which focuses on whether private, marital conduct goes to whether sexually harassing conduct in the workplace is welcome:

In a female plaintiff's quid pro quo and hostile work environment sexual harassment trial, in which she alleged in part that she was traumatized by repeated, forced viewing of pornography at work, a trial court erred in allowing the defendant to cross-examine her about a videotape she allegedly made that showed her engaged in a sexual act with her husband.

"Whether or not [the plaintiff] willingly made a tape with her husband in the privacy of her own home has no bearing on whether or not her exposure to pornography at her work place was unwelcome and damaging," a state appeals court held. The trial court then compounded the error when it prohibited the plaintiff's attorney from rehabilitating its client by asking her about the videotape or playing it for the jury, and refused to allow her husband to testify that she was unaware of the tape's creation and angered by it. However, it was no abuse of discretion for the court to allow another plaintiff to be asked on cross -examination whether she had ever visited a strip club after she stated on direct examination that the defendants once brought strippers into the workplace, creating an "uncomfortable atmosphere." This questioning went directly to the plaintiff's credibility, the reviewing court reasoned.

The case is Conti v Spitzer Auto World Amherst, Inc. (Ohio Ct. App. Mar. 24, 2008).

I have to say that I am astounded by the lack of common sense demonstrated by the trial judge in this case. It is like that example we study in employment discrimination law about whether a female worker who poses for Playboy thereby asks to be harassed sexually at work.

Of course not.  Don't have to be an employment discrimination law professor to figure that one out.



Employment Discrimination | Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference Existence of Sex Tape with Husband Shouldn't Impact Sexual Harassment Claim:


Yeah, the idea that certain sexual activities can be consensual and fine if done with some folks, but unwelcome (and worse) if done with others, depending on the individual woman's judgment, seems to be hard for some judges to grasp. Which is odd, because this distinction has existed for a long time in, say, laws against rape.

Posted by: Joseph Slater | Apr 8, 2008 7:40:37 AM

I couldn't agree with you more. That trial judge made egregious calls. I can't believe the judge let defense violate the plaintiff's privacy yet again in open court.

And why would the fact that someone has gone to a strip club mean that having strippers in the workplace could be "comfortable"? How on earth is that close to relevant?

Gene Lee

Posted by: Eugene Lee | Apr 8, 2008 12:27:41 PM

Reading the opinion I feel justice was not served ons everal accounts. The ones listed as well as the repeated failure of the plaintiffs' attorneys to preserve error by not objecting to lots of other stuff.

Posted by: Per Son | Apr 9, 2008 8:30:16 AM

Post a comment