When a female employee sues her employer for sexual harassment, are her own e-mails—including sexual jokes, stories, and cartoons—admissible in court to show a high level of tolerance for bantering of a sexual nature? A Pennsylvania district court recently reviewed a case raising that issue. Its decision illustrates some of the principles behind sexual harassment law and evidence.

What happened. “Rhonda” brought a claim against her employer, The International Group, Inc. (IGI), arguing that she was subjected to sexual harassment in a hostile work environment. Rhonda claimed that her supervisor, “John,” stared at her chest on two occasions and made an overtly sexual comment to her at a company dinner in front of her colleagues and supervisors. She also claims John yelled at her numerous times at work, gave her a negative performance review, and generally ignored her, making it difficult for her to perform her job duties.

IGI sought to include as evidence in the case a number of Rhonda’s e-mails, including sexual content sent to and received by colleagues, in order to show Rhonda’s high level of tolerance for and comfort with bantering of a sexual nature. The e-mails included jokes, stories, cartoons, and Rhonda’s commentary. Rhonda sought to have the e-mails excluded.

What the court said. Rhonda argued that Rule 412 of the Federal Rules of Evidence applied to her e-mails of a sexual nature and that the e-mails should be excluded from trial. Rule 412 seeks to protect the “alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process” (Fed. R. Evid. 412, Advisory Committee Notes on 1994 Amendments). The court, however, disagreed with Rhonda and held that the e-mails are admissible in order to help determine whether Rhonda was actually offended by John’s sexual comments and actions. Seybert v. International Group, Inc., U.S. District Court for the Eastern District of Pennsylvania, No. 07-3333 (10/15/09).

Point to remember: Federal law does not prohibit simple teasing, offhand comments, or isolated minor incidents, but in order to prevent claims of harassment, employers and supervisors should train all personnel to avoid using sex-related humor or references that can later be used as evidence of sexual bias; avoid keeping suggestive portraits or pictures in their workstations; and avoid sexual references.