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A plaintiff’s private and consensual sexual activities do not constitute a waiver of his or her legal protections against unwelcome and unsolicited sexual harassment.
Plaintiff Jonathan Polo-Echevarria ("Polo") allegedly experienced sexual harassment from defendant Joaquin Rodriguez-Benitez ("Rodriguez"). Subsequently, on January 12, 2014, defendants Corporacion Puertorriqueña de Salud ("CPS") and Rodriguez filed a motion pursuant to Federal Rule of Evidence 412 ("Rule 412"). Having elicited information from plaintiff regarding plaintiff's sexuality and texting relationships with other known and unknown men, defendants sought to introduce that evidence at trial. Defendants broadly claimed that the evidence was of the utmost relevant to plaintiff’s credibility, to the identity of the firstname.lastname@example.org and "Siempre Atento" user, and to the issue of welcomeness pursuant to a Title VII hostile work environment sexual harassment claim. Defendants argued that plaintiffs "by their own volition placed in controversy Jonathan Polo's reputation" and that "all of Jonathan Polo's behavior, conduct, actions, and habits" were relevant to his state of mind, identity, presumptions, and conclusions.
Under the circumstances, should the court allow the evidence regarding plaintiff’s private dating life?
The Court found no defendable reason for allowing evidence at trial regarding plaintiff’s private dating life - including his sexual preferences, family dynamics regarding his sexuality, dating history, and any relationships or communications with other men via text message or telephone that did not occur within the time periods in question. The court noted that all of the examples cited by defendants in their motion concerned plaintiff’s private sexual life outside of the relationship in question, and were precisely the types of intrusive generalized questions about past, private, consensual sexual conduct that courts readily found marginally probative to sexual harassment claims, highly prejudicial and likely to harm the plaintiff. The court held that a plaintiff’s private and consensual sexual activities did not constitute a waiver of his or her legal protections against unwelcome and unsolicited sexual harassment.