Photos of 'Provocative' Clothing Are Admissible at Harassment Trial

Testimony and photos about a plaintiff's allegedly "provocative" dress, speech and conduct at the office can be used to fight claims that she was forced to work in a sexually hostile environment, Massachusetts' highest court has ruled.

Affirming a jury verdict for the defendants, the Supreme Judicial Court said that although the trial judge gave an erroneous jury instruction on the effect of Kimberly Dahms' behavior on her hostile-environment allegation, there was no prejudice as a result because the instruction "related only to a single claim."

Dahms worked for Cognex Corp., a designer and manufacturer of computer systems, as a director of customer satisfaction from 1990 until she was fired in June 2000.

During her tenure with Cognex, Dahms became friendly with company officer John Rogers. According to the opinion, they spent time together at company functions and outside the office, taking trips together with and without their respective fiancés.

After a rafting trip in 1997, Dahms ended "all non-work contact with Rogers," according to her trial testimony. Shortly thereafter, Rogers began to complain about her work, Dahms claimed.

That same year, Dahms approached Cognex CEO Robert Shillman about being harassed by Rogers, and Shillman launched an informal investigation without revealing that Dahms had complained. When Dahms told him that Rogers had stopped "bothering" her, Shillman assumed that the matter was over, according to the opinion.

However, in August 1998 Dahms filed a complaint with the Massachusetts Commission on Discrimination, alleging sexual harassment, hostile environment and retaliation.

After months of negotiation, the parties could not reach agreement on Dahms' future at Cognex, especially in light of the non-compete agreement she had signed when hired.

Dahms sued Cognex, Rogers and Shillman in the Middlesex County Superior Court in June 1999, and the company fired her in one year later because it said it "wasn't able to make her work." Dahms' complaint included claims of violations of the state gender discrimination law.

After a jury trial in October 2003, the jury returned a verdict for the defendants, and Dahms appealed, arguing that the judge had made several evidentiary errors.

The Supreme Judicial Court transferred the case from the Appeals Court on its own motion.

The high court rejected all Dahms' arguments for reversal and affirmed the judgment for the defendants.

Dahms had argued that the judge improperly allowed introduction of evidence about her allegedly "provocative" and "seductive" clothing, speech and conduct. The high court, however, noted that her attorney was the first to mention such evidence during direct examination of Shillman and introduced into evidence several photographs of Dahms at company-sponsored Halloween parties and other Cognex functions.

Because Dahms claimed that she had been unwillingly subjected to a sexually hostile environment, she made relevant her own behavior in the workplace with co-workers, customers and supervisors, the court explained. This information was probative of whether she was subjectively offended by her work environment or by Rogers' conduct, it said.

"It [the information] concerned behavior in the workplace and at company events, or interaction with the defendants by whose conduct she claims to have been harassed," the court said. "It was not admitted (nor admissible) as character evidence or to paint Dahms as a 'loose' woman."

Here, the judge did not abuse his discretion by allowing the defendants to introduce evidence to counter that adduced by Dahms herself, and throughout the trial the judge "engaged in constant and careful weighing of probative value versus potential prejudice of evidence regarding the plaintiff's dress, speech and conduct," the court said.

Dahms also took issue with the trial judge's jury instruction on hostile environment, specifically, the sentence "If you find that Ms. Dahms was a willing participant in sexual behavior in her workplace ... then she has not proven this subjective element of her hostile-environment sexual harassment claim."

The high court agreed that this sentence was an incorrect statement of the law because it suggested that a judgment for the defendants was required if Dahms was a willing participant in any sexual behavior in the office. A fact finder is not required to return a defense verdict "merely because the plaintiff participated in sexualized behavior with third-party co-workers," the court emphasized.

However, because it concluded that no prejudice occurred as a result of the misstatement, the court allowed the verdict to stand.

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