In a sexual harassment case, the defendant may argue that the plaintiff is not a victim of harassment because she was not “offended” by the harasser’s behavior toward her or others. The defendant can make this argument even if a reasonable woman in the plaintiff’s position would have been offended the harasser’s conduct.
In a sexual battery case, the conduct of the perpetrator must be offensive to the victim. "Offensive contact" means contact that offends a reasonable sense of personal dignity.
During the Discovery (investigation) phase of a lawsuit that precedes the trial, the defendant may try to investigate the Plaintiff’s prior sex life and relations outside of the office to show that the plaintiff did not object to similar sexual conduct by others (and therefore, could not have been offended by the behavior of the defendant). In this regard, defendants in sexual harassment cases have been known to investigate the following:
- the victim’s sexual interests
- the victim’s sexual orientation
- whether the victim ever viewed pornography
- whether the victim dressed in provocative clothing
- whether the victim used sexually-charged language
- whether the victim had sexual relations with other people she worked with
- whether the victim had abortions
Inquiry into a sexual harassment plaintiff’s sexual conduct with individuals other than the alleged harasser is prohibited both by California statutes that are similar to “rape shield” laws. California privacy protections limit a defendant’s Discovery of the plaintiff’s sex life. Through a “motion in limine” (an evidence exclusion request), the plaintiff can also ask the court to prevent the defendant from showing such evidence to the jury. Courts can exclude such evidence if they determine that it has very little importance to resolving the issues in dispute at trial, that it may mislead or confuse the jury, or take up too much time at trial.
Not only is sexual harassment illegal. The law also prohibits:
- Racial harassment
- Religious harassment
- Age-based harassment
- Harassment based on disability
- Harassment based on ethnicity or national origin