A conservatively dressed, clean-cut, well-spoken, educated woman appeared for her initial client interview in my office. To protect her privacy, I will refer to her as "Cindy." I carefully took notes and nodded sympathetically as Cindy demonstrated quite credibly that she was indeed harmed. The perpetrator was her supervisor, and the well known president of a fortune 500 company who had the gall to fire Cindy after she complained to the board of directors about his constant grabbing and groping of her private parts. Better yet, my client turns over numerous emails and letters, all lewd, and all direct evidence of severe sexual harassment and retaliatory threats. Cindy's story was so compelling, I left the conference room to wipe away a few tears. My grief evaporates and I sign Cindy up as a client.

Fast forward to the first day of Cindy's deposition. The Plaintiff's deposition is usually frustrating and draining. My clients are justifiably terrified and confused. After three or so days, I can write the defense motion for summary judgment off the top of my head. But, today is different---I've got a great client, a great case---nothing could go wrong. Feeling somewhat generous, I volunteer to drive Cindy to the defense attorney's office. Somewhere near Culver City, I hear those all-to-familiar words, "oh, by the way, I forgot to tell you something." My hands tightly grip the steering wheel and I prepare for the worst. I learn that my client slept with a few co-workers. By the way, there are photographs. My car swerves a bit. I'm not real happy at this point but I'm great at rationalizing things, so I tell myself, hey, she's young, she's single, no harm no foul. I make a "memo to self" to object to any questions about my client's sexual history with anyone other than the perpetrator.

An often overlooked fact is that victims of sexual harassment have protections during the discovery phase of the case. In a sexual harassment case, the mere inquiry into a plaintiff's sexual conduct with individuals other than the alleged harasser is prohibited both by California statue and case law. These laws are similar to "rape shield" laws which prohibit discovery into and the admissibility of a rape victim's sexual experiences. Specifically, California Code of Civil Procedure §2017 (b) protects such evidence from discovery. In other words, a defendant must file a motion and obtain a court order before it can propound any discovery or ask deposition questions regarding a plaintiff's sexual conduct with any others besides the harasser. Similarly, California Evidence Code §1106 (a) precludes the admission of such evidence at trial.

Keep in mind that if you or your client make a mistake and "open the door" on the issue of his or her sexual conduct, for example, by testifying or calling a witness to testify on the subject, evidence of plaintiff's past sexual activities may be introduced in rebuttal or to challenge plaintiff's credibility under California Evidence Code §1106(c),(d).

As we are seated across from three attorneys, their entourage, and a large video camera, I wonder what else lurks in Cindy's past. My mood greatly improves when the court reporter begins to cry as my client tearfully describes the intolerable abuse. Cindy then admits that she used a lot of profanity at work. Time for a bathroom break. Cindy's explanation for her apparent out of character conduct is that she was under "a lot of stress" because of the harassment. After the first day of Cindy's deposition, I dictate one of several motion in limine to file before trial.

Motions in limine are brought under California Evidence Code §§351, 352: All relevant evidence is admissible unless subject to an exclusionary rule or its probative value is outweighed by probative risks. So, if evidence is highly prejudicial to your client, may confuse the jury, or takes up too much time, then bring a motion in limine: Rest assured the defense will. In sexual harassment cases, you will certainly be faced with some of the following issues.

Vulgar Language or Similar Conduct in the Workplace
Your motion should explain that the use of vulgar language does not necessarily mean that your client invited or welcomed what would otherwise be considered sexual harassment. In fact, she had told the harassers to stop and complained to the board of directors of the company with no response or investigation. Carr v. Allison Gas Turbine Div., General Motors Corp. (7th Cir. 1994) 32 F.3d 1007, 1010-1011; Swentek v. USAir, Inc. (4th Cir. 1987) 830 F2d 552, 557.

One court has held that where a coworkers' sexually explicit graffiti and vulgar comments directed at plaintiff could be considered "unwelcome" sexual harassment even if she herself used foul language and engaged in graffiti writing. Danna v. New York Tel. Co. (SD NY 1990) 752 F.Supp. 594.

Sexual Conduct Outside the Workplace
Plaintiff's conduct outside the workplace with persons other than the alleged harasser is generally irrelevant to whether she welcomed sexual advances at the workplace. Burns v. McGregor Electronic Industries, Inc. (8th Cir. 1993) 989 F2d 959, 963.

In a sexual harassment case, plaintiff's motions in limine were properly granted concerning plaintiff’s viewing of X-rated videotapes with her husband, abortions she had and sexual conduct with persons other than the defendants charged with harassment. Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal.App.4th 397]

Evidence of plaintiff’s sexual preferences and conduct were properly excluded in a wrongful discharge suit where it was totally irrelevant to the plaintiff's his termination. McLain v. Great American Ins. Cos. (1989) 208 Cal.App.3d 1476 (defendant admitted it could not show that plaintiff’s sexual behavior contributed to his discharge).

Sexual Activity Privacy Rights Afforded to the Plaintiff and Third Parties
In Vinson v. Superior Court (1987) 43 Cal.3d 833, the Supreme Court held that a party’s sexual activities outside of marriage are within the zone of privacy protection. The rights protected are not just those of the plaintiff, but also the third parties with whom the party has had sexual relations. Morales v. Superior Court (Smith) (1979) 99 Cal.App.3d 283, 291-292.

Defendant's Use of Other Sexual Conduct To Show Victim was Not Offended
Whether an alleged victim in fact perceived an environment to be sexually offensive does not turn on the private sexual behavior of the alleged victim, because a women's expectations about her work environment cannot be said to change depending upon her sexual sophistication. Wolak v. Spucci (2nd Cir. 2000) 217 F3d 157, 160.

Defendant's Use Of Sexual Conduct to Show Welcomeness
Evidence of a plaintiff's sexual conduct is inadmissible to show welcomeness unless it involved or was made known to the perpetrators of the harassment, which includes all individuals that the plaintiff claims participated in the harassment. Arnold v. Rieger (2003) 104 Cal.App.4th 451.

Broad Definition of Sexual Conduct
The term "sexual conduct" is broad and includes other claims of sexual harassment. Wolak v. Spucci (2nd Cir. 2000) 217 F3d 157, 159; B.K.B. v. Maui Police Dept. (9th Cir. 2002) 276 F3d 1091, 1104-1105. The phrase "sexual behavior" includes "activities of the mind" such as watching pornographic videos or other sexual fantasies. Wolak v. Spucci, supra, 217 F3d at 159.

How Defendant Must Approach Sexual Conduct Evidence
If evidence of plaintiff's sexual conduct is offered as rebuttal evidence, or to attack her credibility as a witness at trial, Defendant must file a written motion stating that it has an offer of proof of the relevancy of particular evidence of plaintiff's sexual conduct. The motion must be supported by an affidavit stating the offer of proof. If the court finds the offer sufficient, a hearing must be held outside of the presence of the jury in which your client may be questioned. Then, if the court finds the evidence relevant and not unduly prejudicial under Evidence Code §352, it may make an order stating what evidence may be introduced and the nature of questioning permitted. Evidence Code §783.

Other Claims Against the Defendants
The defense will work hard to exclude any evidence of similar claims against the company, the harasser and/or your client's perception and knowledge of such events. Be sure to keep the following cases in mind:

Evidence of Harassment of Other Women
Demeaning remarks about women in general which were not aimed at plaintiff may show a sexually hostile workplace environment. Abeita v. TransAmerica Mailings, Inc. (6th Cir. 1998) 159 F3d 246, 251-252.

Where Plaintiff Does Not Personally Witness Harassment
It matters not that the plaintiff's knowledge of the prior conduct is based on hearsay. For example, in Carter v. Chrysler Corp. (8th Cir. 1999) 173 F3d 693, 701, fn. 7, evidence that the plaintiff learned someone had written obscenities about her in men's bathroom was admissible.

The Harasser's Harassment of Others
A plaintiff may introduce evidence that the perpetrator had harassed other women at work to show a "hostile and offensive" working environment. "[A] reasonable person may be affected by knowledge that other workers are being sexually harassed in the workplace, even if he or she does not personally witness that conduct." Beyda v. City of Los Angeles, 65 Cal.App. 4th 519.

Other Harassment Evidence To Show Impact on Plaintiff or Pretext by Defendant
The fact that the plaintiff witnessed harassment of other woman may show a hostile work environment in general, thus altering the terms and conditions of her employment. Hurley v. Atlantic City Police Dept. (3rd Cir. 1999) 174 F3d 95, 110. Also, evidence of pervasively sexist attitudes and harassment of other women is admissible to show that the employer's reasons for its actions against plaintiff were a "pretext for discrimination." Id. Plaintiff need not know of the harassment because this evidence goes to the motive behind the adverse action taken against the plaintiff. Hurley, Id at 111.

Harasser's Harassment of Others to Show Notice by Employer
The perpetrator's conduct with others often shows a pattern of conduct that should have put the employer on notice of the potential harassment. Bihun v. AT & T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 991. Such evidence may also be used to show "state of mind" in discrimination cases. Guzman v. Abbott Laboratories (ND IL 1999) 61 F.Supp.2d 784, 786; Lam v. University of Hawaii (9th Cir. 1998) 164 F.3d 1186, 1187-1188

To Show Employer's Anti-Harassment Policy Ineffective
Evidence that other women were being harassed by other men at work infers that the employer's anti-harassment policy was generally ineffective. Hurley v. Atlantic City Police Dept., supra, 174 F3d at 111.

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