The United States Court of Appeals for the Eighth Circuit recently put the reins on employers' strategy of probing plaintiffs' sexual and mental histories to undermine emotional distress damages claims in sexual harassment suits. In Jenson v. Eveleth Taconite Co., the appeals court reviewed a lower court's rulings on emotional distress and other damages awarded in a class action sexual harassment suit under Title VII of the Civil Rights Act of 1964 and the Minnesota Human Rights Act. The lower court had found the employer liable for widespread and egregious sexual harassment in its workplace.
The plaintiffs appealed the lower court's ruling on damages, claiming, among other things, that it misapplied the burden of proof regarding the issue of causation of emotional distress and mental anguish damages. The lower court had held that it was the plaintiffs' burden to distinguish emotional distress attributable to the workplace sexual harassment from emotional distress caused by factors other than the harassment, such as a pre-existing emotional condition caused by earlier events. The Eighth Circuit, based in St. Louis, squarely rejected that ruling, thus, becoming one of the first federal circuits to hold that employers must shoulder the burden of proving that past events, such as marital difficulties or childhood abuse, caused a plaintiff's mental anguish, rather than sexual harassment on the job.
In conjunction with its rejection of the requirement that plaintiffs bear the burden of apportionment, the appeals court chided the lower court for allowing the defendants to pry into the plaintiffs' personal relationships, prior illnesses, and domestic abuse during the pretrial discovery phase of the case. Criticizing what the plaintiffs claimed was a "scorched earth" defense, the appeals court observed that many of the events that the employer sought to discover, such as the plaintiffs' medical histories, childhood experiences, abortions, and ' sexual relationships, were not relevant or were so remote in time that the discovery should not have been allowed.
Although numerous other federal courts have yet to rule on these issues, the Eighth Circuit's sharp criticism of freewheeling discovery into sexual harassment plaintiffs' backgrounds is noteworthy, since it frustrates a defense practice that has grown more common, particularly since the passage of the Civil Rights Act of 199 1, which allows Title VII plaintiffs to obtain compensatory damages for emotional distress and mental anguish. The restriction on such discovery of past events, coupled with the requirement that employers bear the burden of showing that a pre-existing condition helped cause the emotional distress, may make employers think twice about pursuing such a hard line in the damages phase of sexual harassment suits.