Sexual Harassment Of Others -- The Use Of "Me Too" Evidence In Sexual Harassment Lawsuits

A powerful type of evidence in sexual harassment cases is evidence that other employees have been sexually harassed in the same workplace. This is an application of the "Me Too" movement to sexual harassment lawsuits. In fact, the phrase "me too" first appeared in sexual harassment cases to describe evidence that other employees besides the plaintiff had been victims of sexual harassment long before it became the name of a movement against sexual harassment.

There are a number of ways that evidence of harassment of others can be used in a sexual harassment case. It's extremely powerful evidence that can often eliminate any chance of the employer avoiding liability for allowing sexual harassment to occur. "Me too" evidence is so dangerous to employers in these cases that courts are very careful about allowing this evidence to be used at trial.

Evidence regarding harassment of others can be divided into two categories. The first is harassment of others that the plaintiff directly witnesses. The second is harassment of others that the plaintiff does not witness and only becomes aware of later on.

Sexual harassment of others that the plaintiff directly witnesses can be used to establish the existence of a hostile working environment based on sex. A hostile work environment is not limited to conduct that specifically targets the plaintiff. If the plaintiff is around harassment of others or just a generally sexually offensive work atmosphere, that counts too, but only if the plaintiff personally witnessed or experienced it. Conduct that the plaintiff did not witness or personally experience usually cannot be used as evidence of a hostile working environment.

Harassment of others, even if the plaintiff didn't observe the harassment, can still be used for other purposes. Especially if the harassment of others is committed by the same person who's harassing the plaintiff, this evidence can be used to bolster the plaintiff's credibility in the face of arguments that the plaintiff is fabricating or exaggerating testimony about the harassment. Employers frequently argue that sexual harassment plaintiffs are misinterpreting or exaggerating claims of sexual harassment. Having other employees corroborate the plaintiff's opinions about the harassment is very helpful in such circumstances.

This evidence can also be used to prove that the employer knew about the harasser's conduct and had an opportunity to stop it. Employers often contend that they weren't aware of the harassment, had no chance to stop it, and thus can't be liable for allowing a hostile work environment that they didn't know existed. Even when plaintiffs say that the employer knew about the harassment because they complained, employers respond with arguments disputing the existence of complaints, the substance of the complaints, or adherence with the employer's complaint procedure. 

When that happens, as it often does, useful counter-evidence through the harassment of others includes proof that the harasser's conduct was so widespread that the employer knew or should have known what was happening simply by the sheer magnitude of the harassment. Better yet, other victims of sexual harassment can sometimes testify that they complained to the employer about the harasser's conduct. It doesn't matter how the employer got its knowledge of the harasser's conduct or where that knowledge came from as long as the employer knew or should have known about the conduct and had an opportunity to stop it.