A Survey of Evidence and Discovery Rules in Civil Sexual Harassment Suits with Special Emphasis on California Law

Abstract

Workplace sexual harassment creates a problem that extends beyond the specific injuries suffered by the individual victim. Insofar as sexual harassment is directed predominantly toward women, it serves to perpetu ate sex-based economic disparities. Sexual harassment plaintiffs have ex perienced an expansion of their substantive rights in recent years, through a variety of state and federal civil rights legislation and court decisions. The author contends, however, that defendants' use of discovery (and the corresponding introduction of evidence in open court) strips plaintiffs of their privacy to the extent that meritorious suits may be inhibited. The author focuses on two issues: the introduction of evidence regarding plain tiffs' past sexual behavior, and court-ordered psychiatric examinations of plaintiffs. The author suggests that legislation analogous to rape shield statutes be enacted to curb potential plaintiffs' fears of humiliation and embarrassment. The author further proposes that psychiatric examina tions be ordered only when a plaintiff is planning to introduce expert testi mony on her mental state. Alternately, the plaintiff could be accorded the right to have counsel present during psychiatric examinations.