Preventing Re-Victimization of Sexual Harassment Victims: The Limits of Discovery of Plaintiff’s Intimate Past in Sexual Harassment Suits
While the most recent claims surrounding New York’s governor have yet to play out, it remains an unfortunate reality that instances of people in power over others using that power to perpetrate sexual harassment happen all too often. In the wake of the #MeToo and Time’s Up movements of recent years, and as more victims weigh the potential costs and benefits of coming forward with claims of sexual harassment in the workplace, many are concerned about how much of their past intimate lives may be subject to scrutiny during the litigation process. Some victims who fear that their past sexual histories will be scrutinized by their employer’s counsel, the court, the media, and even a jury, often question whether to come forward at all. This article analyzes the extent of this risk through a review of the law regarding the scope of permissible discovery into details of a sexual harassment plaintiff’s past intimate encounters outside of the workplace that gave rise to the plaintiff’s claim.
Sexual Harassment Plaintiffs May Seek a Protective Order
Perhaps at the urging of a defendant’s high-ranking official who has been accused of sexual harassment that the plaintiff was “fine with it,” defense counsel will at times seek to delve into the personal sexual histories of sexual harassment claimants. Courts considering this issue have almost universally concluded that such discovery is inappropriate, and that claimants should be protected from questions and tactics that attempt to expose highly personal details not directly related to the claims at issue.
Whether discovery concerning a sexual harassment plaintiff’s past intimate life takes the form of an interrogatory, request to produce, request for admission, request for mental examination, or a deposition question, all such inquiries may be scrutinized by a court to ensure that the plaintiff is protected from annoyance, embarrassment, oppression, or undue burden. A sexual harassment plaintiff faced with an inquiry into her past intimate life outside of the workplace should consider moving for a protective order under either Fla. R. Civ. P. 1.280(c) or Fed. R. Civ. P. 26(c) depending on the forum.
The Florida Rules of Civil Procedure directly address motions for protective order that seek to protect a party from “annoyance, embarrassment, oppression, or undue burden….” Rule 1.280 states (emphasis added) in pertinent part:
(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion.
In Florida state courts, “‘A trial court possesses broad discretion in overseeing discovery and protecting the parties that come before it.’” Under the parameters of Rule 1.280(c), the circuit court may fashion discovery orders that protect a party from abuses of the discovery process. Courts have the power to regulate discovery; “discovery of relevant, non-privileged information may be limited or prohibited in order to prevent annoyance, embarrassment, oppression or undue burden or expense.”
Sexual harassment plaintiffs, through the procedural mechanism of filing a motion for protective order, may call on courts to exercise their authority to protect plaintiffs’ privacy interests by prohibiting employers from delving into past intimate lives outside of the workplace. As discussed below, these types of inquiries are routinely held to be unjustified.
Caselaw Establishes Limits on Discovery
Both courts and the legislature have recognized that certain areas of life, such as sexual practices and medical histories, are “sanctuaries of privacy entitled to protection.” This does not change because a plaintiff brings a sexual harassment or similar claim against a defendant. To the contrary, courts around the country that have addressed the issue have routinely denied discovery that focuses on past intimate histories.
For example, nearly 40 years ago, a California federal district court explained why, in sexual harassment cases, a plaintiff’s past sexual history outside of the workplace is essentially off-limits in discovery:
In the instant action, this Court is concerned with the potential of the requested discovery to harass, intimidate, and discourage the plaintiff in her efforts to prosecute her cause.
Discovery of intimate aspects of plaintiffs’ lives, as well as those of their past and current friends and acquaintances, has the clear potential to discourage sexual harassment litigants from prosecuting lawsuits such as the instant one. For those more hearty souls who are determined to have their day in court, it has the potential to annoy and harass them significantly. This Court has read excerpts from the transcript of plaintiff’s deposition in which defendant sought to elicit information about plaintiff’s prior sexual relationships, and finds the annoyance and discomfort which the plaintiff obviously suffered as a result of defendant’s inquiries unnecessary and deplorable.
The possibility that discovery tactics such as that used by defendant herein might intimidate, inhibit, or discourage Title VII plaintiffs such as Ms. Priest from pursuing their claims would clearly contravene the remedial effect intended by Congress in enacting Title VII, and should not be tolerated by the federal courts. In fact, it was to empower federal courts to prevent such unjust effects that Rule 26(c) of the Federal Rules of Civil Procedure was enacted. Sexual harassment plaintiffs would appear to require particular protection from this sort of intimidation and discouragement if the statutory cause of action for such claims is to have meaning. Without such protection from the courts, employees whose intimate lives are unjustifiably and offensively intruded upon in the workplace might face the “Catch-22” of invoking their statutory remedy only at the risk of enduring further intrusions into irrelevant details of their personal lives in discovery, and, presumably, in open court.
The Court is not unmindful that a similar state of affairs once confronted victims in criminal prosecutions for rape, who often ran the risk of finding their own moral characters on trial during the prosecution of their assailants….
This Court is deeply concerned that civil complaints based on sexual harassment in the workplace will be similarly inhibited, if discovery tactics such as the one used by defendant herein are allowed to flourish.
It is often said, that those who do not learn from history are condemned to repeat it. By carefully examining our experience with rape prosecutions, however, the courts and bar can avoid repeating in this new field of civil sexual harassment suits the same mistakes that are now being corrected in the rape context. The courts and Congress have concluded that even in the criminal context, the use of evidence of a complainant’s past sexual behavior is more often harassing and intimidating than genuinely probative, and the potential for prejudice outweighs whatever probative value such evidence may have. Certainly, then, in the context of civil suits for sexual harassment, and absent extraordinary circumstances, inquiry into such areas should not be permitted, either in discovery or at trial. Accordingly, it is hereby ordered that defendant’s motion for reconsideration of the decision of the magistrate is denied, and plaintiff’s cross-motion for a protective order under Rule 26(c) is granted. The defendant is hereafter prohibited from further inquiry into plaintiff’s past sexual behavior.
Over 30 years ago, a Florida federal district court denied a motion to compel a mental examination of a plaintiff in a sexual harassment case noting:
In sum, application of the objective standard for Title VII hostile work environment sexual harassment claims is not informed by evidence which may be obtained in a mental examination. Plaintiff does not place her mental condition in controversy by alleging that her psychological well-being, as well as the psychological well-being of all reasonable individuals exposed to like circumstances, is seriously affected by defendants’ behavior.
…Because claims in this area are measured against an objective standard, a ruling in favor of a mental examination in this case would endorse mental examinations in every Title VII hostile work environment sexual harassment case. This result is unacceptable, and the price would be too high. Plaintiffs in these cases would face sexual denigration in order to secure their statutory right to be free from sexual denigration. Reporting of sexual harassment claims would certainly be discouraged, thereby undercutting the remedial effect intended by Congress in enacting Title VII. Faced with a result apparently contrary to the statute, the Court will not impose this cost unless precedent unquestionably dictates the result. The Court’s examination of the case law in this area reveals that the emerging pattern opposes the motion to compel a mental examination.
Many other courts are in accord. For example, a Utah federal district court granted a plaintiff’s motion for protective order in a sexual harassment and intentional infliction of emotional distress suit noting, “evidence of sexual conduct which is remote in time or place to plaintiff’s working environment is irrelevant…. [Defendant] cannot possibly use evidence of sexual activity of which he was unaware or which is unrelated to the alleged incidents of sexual harassment as evidence to support his defense.”
The Utah district court rejected the defendant’s argument that information about the plaintiff’s sexual history was relevant because of the availability of emotional distress damages in one of the claims. As the court instructed, the proper focus should be the conduct of the defendant under an objective standard: “Hence, the sexual proclivities and behavior of the plaintiff are irrelevant to a jury’s finding the defendant’s conduct to be outrageous.” “Since the standard is objective, all evidence of sexual behavior in the workplace environment, whether known to defendants or not, is relevant. All other evidence of sexual behavior is irrelevant and not discoverable….”
Another case squarely addressing this issue came from an Alabama federal district court in 1992. The defendant, as in the previously discussed cases, sought discovery into the sexual history of a sexual harassment claimant. But the court recognized that it and other courts “need to be particularly vigilant in controlling discovery in sexual harassment cases.” The court noted that such discovery is often merely a tool of harassment serving no legitimate purpose because of the remoteness in time and place to the working environment.
Seventeen years later, another California federal district court rejected a defending employer’s assertion that the plaintiffs’ past sexual history and conduct went to the issue of damages for emotional distress:
Regarding the defendants’ claim that evidence of such conduct was relevant to the issue of emotional damages because sexually promiscuous people are less likely to be offended by such conduct, the court disagreed and said that “[p]ast sexual conduct does not, as defendants would argue, create emotional calluses that lessen the impact of unwelcomed sexual harassment. The fact that the plaintiffs may welcome sexual advances from certain individuals has absolutely no bearing on the emotional trauma they may feel from sexual harassment that is unwelcome. Past sexual conduct does not callous one to subsequent, unwelcomed sexual advancements.” The court held, as a matter of law, that the defendants’ inquiries had to be limited to information which was pertinent to plaintiffs’ working environment.
The court concluded that “[q]uestions posed to Plaintiff regarding her sexual conduct, history, or predisposition are shielded from the reach of Defendants’ discovery effort….” Yet another case, this one from a Pennsylvania federal district court, rejected a defendant’s argument that by seeking emotional distress damages, the plaintiff placed her sexual past at issue. An individual’s “rights under Title VII or her ability to seek and recover compensatory damages for the claimed environment cannot be diminished by her tolerance for or reaction to other incidents of inappropriate behavior in another workplace, regardless of whether those incidents were invited or not.”
Also, “the notion that plaintiff’s initiation or reaction to such conduct in another workplace is relevant to the issue of emotional damages because sexually promiscuous people are less likely to be offended by such conduct lacks logical appeal.” Quoting from the Second Circuit Court of Appeals, the court further reasoned:
Whether a sexual advance was welcome, or whether an alleged victim in fact perceived an environment to be sexually offensive, does not turn on the private sexual behavior of the alleged victim, because a woman’s expectations about her work environment cannot be said to change depending upon her sexual sophistication.
This Pennsylvania federal court ultimately disallowed the requested discovery because the defendants failed to “come forward with a sufficient basis to conclude that the discovery sought as to plaintiff’s sexual behavior in her post-separation workplace has logical relevance or otherwise will lead to logically relevant evidence having probative value that substantially outweighs the potentially prejudicial and chilling effect that would be produced by permitting such discovery.”
Similar Protections for Sexual Battery and Other Common Law Claimants
Another opinion from a Florida federal district court in 2011 is noteworthy both for its factual setting and analysis. This was a lawsuit against individuals arising out of certain events alleged to have occurred when the plaintiff was 17 years old and employed as a lifeguard by Volusia County. In her complaint, the plaintiff alleged that she was coerced into sexual encounters with certain senior lifeguards. She pled a variety of claims against her employer and other defendants, including state law claims against the lifeguards for Florida common law battery and intentional infliction of emotional distress. During discovery, an issue arose concerning whether plaintiff’s sexual history, prior to and subsequent to the events alleged, was discoverable.
The focus in the opinion was whether certain interrogatories served by the defendants were appropriate under the legal and factual setting of the case. The defendants requested plaintiff to identify persons with whom she engaged in sexual relations other than the named defendants through the following interrogatories:
5. Give the name, last known address, date of birth and phone numbers of each person you have had intercourse and/or oral sex (fellatio and/or cunnilingus) and/or sexual contact with genitals you have had prior to filing your complaint in this case.
8. Did you have sexual contact (contact with the genitalia) with other individuals not referenced in the complaint, prior to your filing the complaint that you did not consider “offensive”? If so, please list the name, address, telephone number of those individuals you had sexual contact with and the circumstances of each such contact as well as the time period (dates — month, year).
The plaintiff objected to these requests, contending that the requested information was not relevant, was unduly prejudicial, infringed on the privacy rights of third persons, and violated Fed. Rul. Evidence 412. Further, the plaintiff claimed that her sexual history was not logically or legally relevant to any of the claims.
As to the battery claims, the defendants asserted that the information sought was reasonably calculated to lead to the discovery of admissible evidence “to show that the Plaintiff was not offended by sexual contact with men, but in this case she asserts that she was offended by the alleged sexual contact by the Defendant[s].” The court held:
The Court is unpersuaded by this general contention. Plaintiff has already acknowledged that she was sexually active and does not contend that all sexual contact is offensive. The issue is not sexual contact in general, but the alleged sexual acts with these defendants under the alleged coercive conditions set forth in the complaint. The identity of her past partners cannot simply be assumed to be logically connected to whether or not this sexual activity is actionable.
In an effort to try to connect the plaintiff’s other sexual conduct with the allegations, the defendants argued that “[t]his information is relevant on the element of ‘offensive’ contact for civil battery as to why the Plaintiff was offended by the Defendant’s alleged touch while she was not offended by other men sexually touching her, which may include older individuals.” The court rejected this argument:
It does not matter “why” Plaintiff objects to some sexual activity but not to other sexual activity. As acknowledged by the parties, a cause of action for battery requires a showing of harmful or offensive touching. As Plaintiff was a minor at the time of the alleged incidents, any sexual activity with the significantly older lifeguards is a “harmful” touching under Florida law. The existence of others who may have also intruded upon the minor is simply irrelevant to the battery cause of action against these Defendants or to any legitimate defense of this claim.
The court further found that the discovery sought was almost certainly inadmissible under Rule 412. Rule 412(a) provides that evidence relating to an alleged victim’s sexual behavior or sexual predisposition is not admissible in a criminal or civil proceeding except in certain circumstances. The court noted that although Rule 412 is a rule of evidence and the discrete issue in the case involved discovery, the Middle District of Florida generally follows the majority rule that Rule 412 informs the proper scope of discovery. The court stated that even if the identity of other sexual partners could somehow be deemed logically relevant, the policy against delving into a party’s sexual history counsels against a finding of legal relevancy.
The court found that a similar analysis applied to the plaintiff’s intentional infliction of emotional distress claims. The defendants contended that the information sought was “relevant to the element of emotional distress and ‘severity’ of such distress which [Plaintiff] alleges the Defendant[s] caused her but other sexual partners she had prior to filing her Complaint apparently did not.” The court failed to see the connection noting that it appeared that the defendants were asserting that the plaintiff’s sexual activity with others meant she was either not damaged by the alleged sex with her older co-workers or not damaged much. The court wrote:
Such a premise, however, assumes that all sexual activity is generic and has an identical, identifiable, and equal impact on the participants. The fallacy of this premise is evident. Even if Plaintiff had (and was not offended by) any number of other encounters with other partners of every age and description, this would not serve to detract from her undoubted right to be free of “coerced” activity with these particular defendants. In view of the policy considerations under Rule 412, and the absence of a showing that the names of any other sexual partner or partners and the circumstances of other couplings relates to matters that might serve to establish or vitiate any claim or defense, the interrogatories are outside the scope of discovery.
Next, in a case from 2018, a New York federal district court again disallowed inquiry into the sex life of a plaintiff. The court denied inquiry into the plaintiff’s sexual history with other men, stating “[t]he prejudice arising from [plaintiff’s] prior sexual history with other men would outweigh what little relevance it may bring to this case.” The discovery sought by the defendants was “primarily drafted to elicit salacious details about [plaintiff’s] relationships.”
While these former cases stand for the proposition that discovery that delves into a sexual harassment (or sexual battery) plaintiff’s past private life outside the workplace is generally off limits, questions concerning sexual activity within the workplace that is the subject of the lawsuit may be deemed appropriate and relevant.
For example, one Florida federal district court permitted a defending employer to request information regarding the plaintiff’s sexual relationships (if any) with its own employees. The court stated that information related to plaintiff’s conduct at work was relevant and reasonably calculated to lead to the discovery of admissible evidence. Furthermore, the court found that information relating to sexual relationships the plaintiff had (if any) with the employer’s managerial employees outside of work was also discoverable because such conduct, according to the court, was relevant to the issue of welcomeness as well as motive.
Based on the foregoing, there is a well-established recognition of the need for privacy protections for sexual harassment plaintiffs throughout the discovery process. Essentially, it is off-limits for defending parties to ask for details about a plaintiff’s sexual past unless such activities occurred within the workplace that is the subject of the litigation. Such inquiries are viewed by courts as constituting an “annoyance, embarrassment, oppression, or undue burden” in violation of the governing standards for discovery in both state and federal court. Plaintiffs faced with such inquiries may and should seek the protection of the court through a timely filed motion for protective order. Simply put, as courts have held for decades, consensual and “welcomed” sexual activity in the past outside of the workplace is not relevant to whether “unwelcomed” sexual advances or other sexually harassing words or conduct at work occurred. Moreover, just because a sexual harassment plaintiff may seek emotional distress damages as part of a remedy, this does not justify requiring the plaintiff to disclose the nature and extent of his or her sexual history.
 Fla. R. Civ. P. 1.280(c); Fed. R. Civ. P. 26(c).
 Fla. R. Civ. P. 1.280(c).
 Rojas v. Ryder Truck Rental, 641 So. 2d 855, 857 (Fla. 1994) (quoting Rojas v. Ryder Truck Rental, 625 So. 2d 106, 107 (Fla. 3d DCA 1993)).
 SP Healthcare Holdings v. Surgery Ctr. Holdings, 110 So. 3d 87, 93 (Fla. 2d DCA 2013).
 Peisach v. Antuna, 539 So. 2d 544, 546 (Fla. 3d DCA 1989) (quoting South Fla. Blood Serv. v. Rasmussen, 467 So. 2d 798 (Fla. 3d DCA 1985) (cites omitted), aff’d, 500 So. 2d 533 (Fla. 1987) and Fla. R. Civ. P. 1.280(c)).
 South Fla. Blood Serv. v. Rasmussen, 467 So. 2d 798, 802 (Fla. 3d DCA 1985).
 Priest v. Rotary, 98 F.R.D. 755, 761-62 (N.D. Cal. 1983) (footnotes omitted) (emphasis added).
 Robinson v. Jacksonville Shipyards, Inc., 118 F.R.D. 525, 531 (M.D. Fla. 1988) (citations omitted) (emphasis added).
 Mitchell v. Hutchings, 116 F.R.D. 481, 484 (D. Ut. 1987).
 Longmire v. Alabama State University, 151 F.R.D. 414, 418 (M.D. Ala. 1992).
 Id. quoting Mitchell, 116 F.R.D. at 481.
 Macklin v. Mendenhall, 257 F.R.D. 596, 602-603 (E.D. Cal. 2009) (citations omitted) (emphasis added).
 EEOC v. Donohue, 746 F. Supp. 2d 662, 667 (W.D. Pa. 2010).
 Id. (quoting Wolak v. Spucci, 217 F.3d 157, 160 (2d Cir. 2000)).
 Drury v. Volusia County, 2011 WL 13298708 (M.D. Fla. 2011).
 Id. at *2.
 Id. (citations omitted) (footnote omitted).
 Id. at *3. For a similar analysis in Title IX sexual harassment context, see T.C. on behalf of S.C. v. Metropolitan Government of Nashville and Davidson County, Tennessee, 2018 WL 3348728 at *5-10 (M.D. Tenn. 2018).
 Id. citing Gibbons v. Food Lion, Inc., 1999 WL 33226474 (M.D. Fla. 1999).
 Id. citing Davis v. DeKalb County School Dist., 233 F. 3d 1367, 1375 n. 13 (11th Cir. 2000) (in a case alleging state and federal claims arising out of the sexual abuse of students, the 11th Circuit found that the district court erred in commenting on a plaintiff’s sexual history in violation of Fed. Rul. Evid. 412(b)(2), noting that “[w]e believe the prejudice to Plaintiffs substantially outweighed any probative value this evidence could possibly have had, and thus, should not have been considered by the court on a motion for summary judgment. The district court’s error in addressing this evidence is even more serious in this case because Plaintiff was a minor. Thus, Plaintiff could not consent to Mency’s sexual abuse because she did not possess the legal capacity to consent.”).
 Id.; (footnote omitted).
 Hughes v. Twenty-First Century Fox, Inc., 327 F.R.D. 55, 57-59 (S.D.N.Y. 2018) (“[Plaintiff’s] prior sexual history has no relevance to her claims against [defendant], or the defense that she used [defendant] to advance her career at [the company].”).
 Id. at *7.
 Gibbons v. Food Lion, Inc., 1999 WL 33226474, at *2 (M.D. Fla. 1999).
 Id. at *3.
This column is submitted on behalf of the Labor and Employment Law Section, Scott Atwood, chair, and Robert Eschenfelder, editor.