In sexual harassment cases, evidence of a sexual harassment victim’s past sexual behavior or sexual predisposition – including evidence of a the victim’s sexual behavior, fantasies, dress, speech or lifestyle, is inadmissible at trial. Such evidence can only be admitted where the proponent proves, after a special hearing, that the probative value of the evidence substantially outweighs the danger of harm to any victim or of unfair prejudice to any party. The rule protects victims against the invasion of privacy, embarrassment and sexual stereotyping associated with the public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact-finding process. By affording victims protection in most cases, the rule also encourages victims of sexual misconduct to come forward and to participate in legal proceedings against harassers.
“The days when employers could put the victim on trial are over,” said employment attorney Charles A. Lamberton. Notwithstanding the rule, employers will often still ask about the victim’s past sexual behavior and sexual predisposition in the discovery process because the standard for whether evidence is discoverable is broader than the standard for whether it is admissible. Such requests are thinly veiled efforts to intimidate the plaintiff. “When those questions are put to my client, I let it be known pretty forcefully that we will not respond and will vigorously resist any effort to compel responses.” Lamberton noted that “while it’s true that evidence need not be admissible to be discoverable, a discovery request should be resisted when it is not calculated to lead to admissible evidence. Most evidence the employer seeks to use, especially any kind of conduct that takes place outside the workplace, will not meet that standard.”
Mr. Lamberton is a Pittsburgh employment lawyer and represents employees in sexual harassment and other civil rights cases.