United States: Harvey Weinstein And Sexual Harassment Law: "Me Too"

Last Updated: November 17 2017
Article by David Augustus Garcia

The reports of women who went on the record to accuse Hollywood businessman Harvey Weinstein of sexual harassment, sexual assault, and other abuses, evoked the following recent Twitter message by Alyssa Milano: "If you've been sexually harassed or assaulted write 'me too' as a reply to this tweet." This call to action led thousands to step forward and tell their stories as the #MeToo movement—a campaign started approximately 10 years ago by activist Tarana Burke—gathered momentum and focused the public's attention on the issue of sexual harassment and sex discrimination.

The phrase "me too" has powerful cultural and personal resonance—and it has legal significance. Employment lawyers frequently encounter the phrase in the context of evidence presented in sexual harassment cases and investigations. "Me too" evidence, in fact, may have an impact on cases of hostile work environment sexual harassment brought against Weinstein, should any arise in California based on his alleged misdeeds.    

"Me Too" Evidence 

Employment harassment and discrimination cases can be difficult to prove. Rarely does an employee have conclusive proof that directly shows that his or her employer discriminated or had intent to harass unlawfully. Without eyewitnesses and incriminating documents, employees often have to show prohibited discriminatory animus by means of circumstantial evidence.

In many cases, then, an employee in a lawsuit seeks to introduce "me too" witnesses and indirect evidence that an employer's justification or explanation for a certain offensive employment or workplace action was either false or misleading. Often, damaging indirect evidence involves testimony from other employees to show that the same employer mistreated similarly situated individuals on other occasions. The employee may cite this evidence as proof that the employer had an unlawful intent to discriminate against the employee.

"Me Too" Evidence Upheld: The Case of Pantoja v. Anton

Consider the California Court of Appeal decision in Pantoja v. Anton, 198 Cal. App. 4th 87 (2011), a precedent-setting case involving sexual harassment and workplace discrimination allegations. The plaintiff, Lorraine Pantoja, accused her former boss, Thomas J. Anton, and his law firm, Thomas Anton & Associates, of slapping and touching her buttocks, touching her leg while offering her $200, asking for a shoulder massage, referring to his employees as "my Mexicans," and calling Pantoja a "stupid bitch." Anton fired Pantoja.

Pantoja sued Anton and the corporation for employment discrimination, wrongful termination in violation of public policy, battery, sexual battery, and intentional infliction of emotional distress. At trial, in support of her case, Pantoja asked that the court allow her to introduce witnesses who would testify that Anton had also harassed them on other occasions. One witness would testify that Anton had put his arm around her shoulders; daily yelled words such as "fuck," "shit," and "bitches" in the office; told Pantoja's coworker that "monkeys could do your job better than you"; and called an employee 5 to 10 times while she was on vacation to leave angry, obscene messages such as "You fucking bitch, you fucked everything up." Another employee would testify that Anton had said "I could see right through that skirt"; used obscene language in speaking to other employees; told employees they were monkeys and stupid; yelled, "Why can't I get a competent staff?"; and had engaged in actions such as putting his arms around other employees. He fired and rehired his entire staff.

Pantoja offered proof that more male and female witnesses would testify similarly. Ultimately, the trial court ruled against Pantoja and held that her "me too" evidence was inadmissible to prove Anton's intent or to impeach him, because it did not concern facts that took place while Pantoja was an employee or have an effect on Pantoja's "experience" as an employee. The jury found for the defense and for Anton. To the question, "Was Lorraine Pantoja subjected to unwanted harassing conduct because she was a woman," the jury answered no. It also found that gender was not a motivating reason for Pantoja's discharge.

The court of appeal reversed the jury's verdict. The court of appeal concluded that the trial court had erroneously disregarded the possibility that Pantoja's "me too" evidence could be relevant to prove Anton's intent when he used profanity and touched employees. Applying evidence and the harassment law to Pantoja's case, the court of appeal also articulated the applicable law: A sexual harassment claim based on a hostile work environment exists under both federal and state law, generally, where the employee was subjected to unwelcome conduct or comments because of his or her sex and the result was harassment so severe or pervasive that the conditions of the employment were altered.

The employee need not show that the conduct was motivated by sexual desire because the law prohibits all severe and pervasive demeaning misconduct based on an employee's sex. As such, evidence was admissible to prove Anton's intent or motive even if the conduct did not take place in Pantoja's presence and was unknown to her, because an employer's intent, policies, and practices regarding harassment are facts relevant to a cause of action. The court of appeal noted that it would make "little sense" to limit, to Pantoja's personal observation, the introduction of valid evidence of intent, a pattern and practice of sexual harassment, or policies and practices condoning harassment. The court observed that, "[t]here was no reason to believe that Anton suddenly adopted policies or practices during the nine months of Pantoja's employment and abruptly discontinued them after, or vice versa."

Since 2011, the case of Pantoja v. Anton has been cited to frequently for the proposition that courts may consider "me too" evidence in harassment and discrimination cases.


Given the potential use of "me too" evidence in California harassment cases, and given recent reports, it is possible that Harvey Weinstein could see different "me too" accusers in the same case, should one arise. At least 70 women have reportedly accused Weinstein of sexual harassment, assault, or worse. Recent news articles have chronicled a long history of sexual harassment allegations against Weinstein.

Persuasive proof can nevertheless be stubbornly difficult to establish. Workplace gossip is insufficient. Hearsay is not enough. Indeed, based on evidence law, courts regularly preclude irrelevant evidence, overly prejudicial evidence, unfair character evidence, and unsubstantiated hearsay. Weinstein might even emphasize that in the case of Pantoja v. Anton, the defendant Anton placed his intent in issue by characterizing his "profane tirades" as directed at "situations, not individuals." In other words, Anton opened the door to "me too" evidence by arguing that his actions were intended to be directed at "situations" and not at Pantoja directly. These types of evidentiary issues are typically pivotal in a sexual harassment "me too" case.

Whether and how a court would rule on "me too" evidentiary issues in a hypothetical Weinstein harassment case is, at this moment, a matter of speculation and debate. What is not speculation, however, is that Weinstein and employers sued for harassment can face a potentially pivotal "me too" legal battle in court.

For an in-depth look at the law on sexual harassment and steps you can take to prevent it in your workplace, join us for our upcoming webinar, " The "Weinstein Effect": What Employers Can Expect in the New Era of Sexual Harassment," featuring Laura D. Heckathorn (Of Counsel, Los Angeles) and Sara Jones (Managing Director, Smith & Company), who is a leading public relations expert on crisis management on November 29, 2017, at 11:00 a.m. Pacific. To register for this timely program, click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions