New York Employment Attorney Blog
In your federal lawsuit for workplace sexual harassment, one of the keys to getting the best possible result is making sure you get to put before the court all of your evidence, with none of it being stymied but a fallacious effort by the defense to exclude it. Another key is ensuring that you are successful in keeping out all of the defense’s evidence that, according to the rules, is inadmissible. Doing these things will strengthen your case and weaken the defense’s case, thereby giving you an enhanced opportunity for success. To maximize your ability to do all of these things, make sure that you have the representation you need from a knowledgeable New York sexual harassment lawyer.
Undeniably, the #metoo movement did a vital service in exposing the rampant and sometimes severe sexual harassment women endure in certain industries. As the New York Times pointed out back in 2018, though, modeling is an area where men experience an elevated frequency of harassment.
Regardless of your gender, the federal rules can be a powerful friend in your sexual harassment case. Consider, as a good example, the lawsuit of a male model currently proceeding in the Southern District of New York federal court.
In the model’s lawsuit, he alleged that a highly successful and powerful fashion photographer sexually harassed him. According to the model’s complaint, the photographer, during a “one-on-one” photo session, directed the model to remove all his clothes. Then, the photographer allegedly took the model’s hand and used it to make the model touch his bare genital area, then to rub the photographer’s genital area over his clothes. The photographer, on another occasion, allegedly kissed the model on the lips and later asked him, “’How far you want to make it? How ambitious are you?”
The model was not simply relying on his own experiences to prove his case. He sought to present as evidence the testimony of 10 other male models who also allegedly suffered similar sexual harassment during one-on-one photo shoots with the same photographer. The models sought to testify that, during those one-on-one sessions, the photographer touched their genitals “or otherwise behaved in a sexually inappropriate manner.” These alleged incidents spanned a broad period of time ranging from 2014 all the way back to the early 1980s.
The photographer sought to strike back and blunt this evidence by introducing three model witnesses of his own. These three models intended to testify that the photographer always conducted himself in a completely professional and appropriate manner during photoshoots with them.
Each side sought to exclude the other side’s witnesses but the model had the arguments to win on both fronts. Regarding the 10 models he sought to introduce as proof of the photographer’s long history of sexual harassment of male models, the court concluded that most of the models’ testimony was admissible under not just one but two federal evidentiary rules.
One of those rules was Rule 404(b), which says that you generally can introduce evidence of “any other crime, wrong, or act.” Even more powerful was Rule 415, which says that, if you’re pursuing “a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation.”
There is a limit, though. A few of the model’s witnesses were excluded because their circumstances were too unlike the plaintiff’s, or happened too long ago, such as the models whose alleged victimization occurred in the 1980s or 1990s, and the models who did not accuse the photographer of inappropriate touching, but rather other misconduct like threatening to harm or destroy their careers if they did not pose nude for him.
An ‘Absence of’ Misconduct by the Harasser ‘on Specific Occasions’ is Not Admissible Evidence
The testimony of the models offered by the photographer was not admissible. Federal law is very clear that a defendant, whether a criminal one or one in a civil case like a sexual harassment matter, “may not seek to establish his innocence . . . through proof of the absence of criminal acts on specific occasions.” You, as the plaintiff, may offer proof of the defendant’s bad acts, but the defense cannot rely upon proof of “‘good acts’ evidence to demonstrate a defendant’s propensity not to engage in charged crimes.”
Regardless of your sexual orientation or your gender identity, if you are a model in New York’s fashion industry, you are at risk of sexual harassment by that subset of powerful harassers with malevolent intentions. Being a model should not mean subjecting yourself to unwanted sexual contact or behaviors. At Phillips & Associates, our skilled New York City sexual harassment attorneys are here to help you take on your harassers. Contact us online or at (212) 248-7431 today to set up a free and confidential consultation and find out how we can help you.