Burden of proof shifted in sex harassment cases.

Defendant employers who hope to discredit claims of workplace sexual harassment must tread lightly when probing employees' sexual and mental health histories, a three-judge panel of the Eighth Circuit has ruled.

The decision marks a clear victory for plaintiffs, who generally have had to bear the burden of proving whether events in their lives--no matter how long ago--could have contributed to the emotional distress they claim in present-day workplace sexual harassment cases. (Jenson v. Eveleth Taconite Co., 130 F3d 1287 (8th Cir. 1997).)

"Hopefully, this decision will help turn the trend to invade--without any kind of penalty--the personal lives of any woman who brings a sexual harassment claim," said Minneapolis attorney Jean Boler, who represented the plaintiff class of female mine workers in Jenson.

Mary Ann Sedey, a St. Louis plaintiff attorney handling an unrelated sexual harassment case against Chrysler Corp., said she thinks the Jenson ruling will have an impact beyond the reaches of the Eighth Circuit.

"It's such a strong opinion. [The court] expressed clear outrage at the tactics the defendants used in this case," Sedey said. "It's going to call a halt to the terribly invasive discovery that's gone on in these sexual harassment cases."

The Jenson plaintiffs were a class of female mine workers in Eveleth, Minnesota, who alleged that the level of sexual harassment they faced from male coworkers and supervisors created a hostile working environment under Title VII of the Civil Rights Act of 1964.

In 1993, a federal district court found for the women. The court then appointed a special master who determined that damages should be awarded to compensate for the women's mental anguish.

The women appealed the award to the Eighth Circuit which agreed that the damages were "inadequate" and that the special master "misapplied" certain legal principles regarding the burden of proof for causation and the admissibility of plaintiffs' expert testimony.

The defendant mine company successfully introduced evidence at trial that past childhood abuse, marital problems, and mental troubles among the women contributed to their mental anguish and that, therefore, the job-site sexual harassment they experienced was not the main cause of their emotional distress.

The Eighth Circuit wrote that "somehow and without explanation" the special master found that the plaintiffs had the burden to show "aggravation of a pre-existing condition" once the mining company discovered information that might diminish its liability.

The appellate judges noted that the plaintiffs did not claim aggravation of pre-existing conditions and, therefore, could not have any burden to prove the defendant's side of the case.

The Eighth Circuit also said that the special master erred by barring testimony from the plaintiffs' six expert witnesses but accepting that of the defendants' experts. Without expert testimony, the federal panel wrote, the plaintiffs could not show what caused their emotional injury.

In a strongly worded section of the 24-page opinion, the panel wrote, "The special master did not attempt to hide his hostility toward psychological evidence in sexual harassment claims, stating: "`Experts'. . . know no more than judges about what causes mental changes--which is to say that they know almost nothing."

The Eighth Circuit sent the case back to the lower court for a retrial on the damages issue.

Sedey said that the ruling highlights the more disagreeable aspects of defense strategies in sexual harassment cases. "There are two things at play here," she said. "One is the invasiveness of the discovery Just because a person files a lawsuit doesn't mean they lose their right to privacy. The other is the way that the defendants try to use this information to say to the plaintiff, `You are a bad person.'

"There is no bright line in this area of law. Decisions in the past have been dependent on the discretion of the courts. What defendants have argued is that the plaintiffs placed their emotional well-being at issue so their well-being was considered fair game. This kind of stuff goes on in sexual harassment cases all the time."