For instance, Mr. Marchand’s alleged comment about going "down deep into the chocolate [dessert] with your berry" presumably could be likened to . . . 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."WHAT!? Perhaps a little context will explain this quote from Seybert v. International Group Inc. (October 13, 2009).
Susan Seybert is the Plaintiff in a sexual harassment suit against her employer, IGI. She claims her supervisor, Brett Marchand (yes, the aforementioned "Mr. Marchand") subjected her to harassment (yes, like the "berry" comment). It turns out Ms. Seybert had previously exchanged some saucy emails herself... like the rather disturbing Santa pic described above.
So what's the legal issue? Ms. Seybert filed a motion to exclude her emails from trial, arguing the emails are irrelevant and possibly barred by Federal Rule of Evidence 412 (which generally prohibits evidence of an alleged victim's sexual behavior or predisposition). The Court had to decide whether to exclude the emails from trial.
To bring a sexual harassment claim for a hostile work environment, the Plaintiff "must prove that she was subjectively offended." The emails could be relevant to whether she personally would be offended by the supervisor's crass comments. Even then, they may still be inadmissible under Rule 412. In short, the Court concludes:
"[The emails] 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."The Court then concludes that the emails are not "inadmissible at this time." The Court leaves open the possibility for subsequent objections to the emails at trial.
Though the Plaintiff's racy emails appear to be fair game in this sexual harassment case, the ruling is fairly narrow. For example, the Court differentiated this case from instances where the alleged harassment includes touching and advances. In those cases the emails are less likely to be admissible.
H/T The Legal Intelligencer - Dirty Jokes on Sex Harassment Plaintiff's Computer Ruled Fair Game.