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?
-Colin Miller
This decision is so patently wrong, on so many levels. Along with the obvious gender/sexism issues, there is a serious class issue that routinely confronts employment law plaintiffs, whether in discrimination suits or other types of cases. Federal judges, by and large, are people with little or no experience of being a subordinate employee. Even those who can dimly remember having been put upon as young law firm associates are unlikely to have much understanding of what most employees are subject to in the routine course of their jobs (where the common law “Master-Servant” categories remain all-too-descriptive). As a result, the judge in this case probably had no clue what it might be like to have your boss make a crude and demeaning sexual “joke” at your expense in front of colleagues, and simply cannot comprehend why that context makes the situation completely non-analogous to private exchanges of jokes, however, ribald, among friends.
I do not understand how the rape shield law is triggered in this case. You say it only bars evidence on”sexual behavior”or”sexual predisposition,”those terms of art need to be interpreted very broadly in order to exclude evidence tending to show that the plaintiff had a crude sense of humor.
Nathan, that is a good point and one which the court actually debated in its opinion. According to the court,
It is by no means clear that Rule 412 must apply to any of the emails at issue. Although some of the emails include sexual content, none of them expressly involve the sexual”behavior”or”predisposition”of Mrs. Seybert or anyone else involved in this case. Likewise, none of the emails bear on Mrs. Seybert’s personal sexual”reputation”per se, in that none of them involve her actual or alleged personal sexual activity. Rather, the emails contain sexual stories, jokes, images and metaphors of a more general nature, exchanged in an apparent attempt at humor, however ill-advised or lame. All things considered, it could be said that these emails do not touch upon any of the relevant privacy or other interests contemplated by Rule 412, or that the protections of Rule 412 are not necessary in this case or even helpful to any party here.
That said, the court decided to treat the e-mails as covered by Rule 412 because
other courts in this district have used Rule 412 to analyze evidence involving attempted sexual humor and innuendo. See, e.g. Flick v. Aurora Equipment Co., Inc., No. 03-2508, 2004 U.S. Dist. LEXIS 4304, —-6-7 (E.D.Pa. Jan. 15, 2004) (using Rule 412 to analyze evidence regarding plaintiff’s sexual jokes and banter at work, including evidence that plaintiff placed a foam carving of male genitalia in the women’s restroom at work, where such evidence was relevant to plaintiff’s hostile work environment claim based in part on sexual innuendo); Cacciavillano. v. Ruscello, Inc., No. 95-5754, 1996 U.S. Dist. LEXIS 16528, —-1-5 (E.D.Pa. Oct. 31, 1996) (using Rule 412 to analyze evidence regarding plaintiff’s sexual jokes and banter at work).
Personally, I don’t see it as a close call. One of the main purposes of the rape shield rule was to prevent evidence of the attire worn by the alleged victim (as sexual predisposition evidence) and the accompanying argument that she was “asking for it” based upon the clothes that she wore. If the clothes worn by an alleged victim constitute sexual predisposition evidence under the rule, I have no problem with courts considering e-mails with sexual jokes to be sexual predisposition evidence as well.
And even without Rule 412, the probative value of these marginally relevant (at best) emails (i.e. they show that — in a completely different social context — the plaintiff was not necessarily upset by sexually-tinged humor) would appear substantially outweighed by the prejudicial effect (“Ooh, she likes dirty jokes; she probably enjoyed it”). The analogy that comes to mind would be a suit for (non-sexual) assault/battery, in which the defendant tried to introduce evidence that the plaintiff participates in amateur boxing, to prove that being hit in the face was not an offensive touching for that plaintiff. Would any judge allow that?
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