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Ohio Court rules private sex video not admissible

Kristina Conti, Emily Dutton and Shawna Smith worked for Spitzer Auto World. These employees alleged they were subjected to sexual harassment on nearly a daily basis. Ms. Conti alleged that two sales managers routinely viewed pornography on work computers and forced her to view pornography on a number of occasions that included acts of intercourse between men and women and women and women. Ms. Conti also alleged that a sales manager rubbed up against her and forced her to touch his buttocks. According to the employees, they were regularly queried about the type and color of their underwear, their private sex lives and their interest in different sexual positions.

At trial the employer convinced the trial judge to allow it to question Ms. Conti concerning a private sex tape made with her husband. The employer argued this evidence was admissible to show that Ms. Conti could not have been emotionally damaged by being forced to view pornography in the workplace. Ms. Conti was not allowed to present any evidence that the video was made by her husband without her consent or any other mitigating factors. After Conti lost at trial, she appealed.

The appellate court held that consensual sexual activities between a husband and wife cannot be used as a defense against sexual harassment which by definition is not consensual. The court felt the employer’s rationale would allow a complete stranger to pursue sexualized behavior toward a woman since she may consent to that type of behavior in the privacy of her home with her husband or significant other. As a result the appellate court felt Ms. Conti’s right to a fair trial was prejudiced and she was permitted to have a new trial, this time without the admission of evidence concerning her private activities with her husband which had no bearing on whether Ms. Conti was forced to view graphic pornography at work.

The Bottom Line:

An employee cannot be sexually harassed if they have invited or consented to sexualized conduct. Here the employer was successful in convincing the trial judge to admit highly prejudicial evidence that had no bearing on the key inquiry of whether she was sexually harassed at work. The appellate court’s opinion may have been radically different had Ms. Conti shown the private home video to others, coworkers or otherwise publicized its existence.

This case also highlights that blatant sexual harassment continues in today’s workplace. Sometimes, given the attention that has been directed to sexual harassment over the past two decades, it is easy for human resources professionals to be lulled into a false sense of security that flagrant sexual harassment does not exist. Unfortunately, due to the ease with which sexually explicit material can be obtained, employers must be ever vigilant. Training on issues of sexual harassment, reporting procedures and proper use of company email and Internet access are a key component to minimizing an employer’s exposure. In addition, an environment must be created where employees and management are encouraged to report unwelcome conduct in the workplace.

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