Jottings By An Employer's Lawyer

Sunday, September 14, 2003

Evidence of Sexual Harassment To Others Than Plaintiff Permitted

In a case that provides a good insight into the problems that can arise during the course of litigation, the 1st Circuit also indicates that testimony by a female employee about sexual harassment she suffered may be admissible in the case of another female to show liability on her employer for a pattern of knowing toleration of harassment by its subordinates. Bandera v. Quincy (1st Cir. 9/12/03) [pdf]. However, her testimony was not proper on what she thought about the impact of the harassment on the plaintiff, since it was improper opinion testimony by a lay witness.

Among the various problems was whether or not there was a settlement after plaintiff fired her first counsel and whether or not the defense counsel's general objection preserved error on the question of lay opinion testimony. The Court ended up sending the case back for further action and suggesting it was in everyone's interest to have it settled. But in a short comment that is sure to make trial lawyers at least feel a little better, the Court showed it remembered what it was like to try a case, when it noted that the failure to preserve error by the general objection was "not a criticism of counsel. Trials are a rough and ready business; snap judgments as to unexpected testimony have to be made all the time." Amen.

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