50 For 50: Five Decades Of The Most Important Employment Discrimination Decisions - Number 40: “Me Too” Evidence


“Me too” evidence is testimony from employees other than the plaintiff who claim that they were subjected to discrimination, retaliation or harassment during their employment.  Plaintiffs often seek to have this evidence admitted at summary judgment or trial because they usually only have circumstantial evidence to support their case.  Employers, on the other hand, seek to exclude “me too” evidence from a jury because it often creates mini-trials in which the employer must prove not only that it did not take unlawful action against the plaintiff, but also that it did not discriminate against other witnesses.

So, where do the courts draw the line between helpful circumstantial evidence and harmful prejudicial evidence?  Unfortunately, the courts have largely punted on the issue.

In 2008, the United States Supreme Court refused to give much guidance on the issue, finding that “me too” evidence under Title VII largely depends on the trial judge’s discretion. In Sprint/United Management Co. v. Mendelsohn, the plaintiff was 51 years old when she was terminated as part of a reduction in force that affected nearly 15,000 employees over an 18-month period.  Mendelsohn sued the company under the Age Discrimination in Employment Act, alleging that she was included in the RIF due to her age.  At trial, Mendelsohn sought to call five other older laid off employees who also believed they were victims of discrimination but who did not report to the same supervisor as Mendelsohn.  The Court concluded that “me too” evidence was neither per se admissible nor per se inadmissible.  Instead, its relevance depended “on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.”  Thus, the trial court must undertake “a fact-intensive, context-specific inquiry” to determine whether a jury should hear it.

The 2011 D.C. district court decision Hayes v. Sebelius expounded upon the Sprint decision by articulating a four-factor test to be applied in the federal courts when considering whether to admit such evidence:

(1) whether past discriminatory or retaliatory behavior is close in time to the events at issue in the case;

(2) whether the same decision maker was involved;

(3) whether the witness and the plaintiff were treated in the same manner; and

(4) whether the witness and plaintiff were otherwise similarly situated.

Although evidentiary rules in state court differ from the federal rules, California courts undertake a similar analysis when deciding whether “me too” evidence should be admitted at trial. For example, in Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties, the California Court of Appeal agreed to admit declarations from pregnant women who claimed to have been treated poorly by the same supervisor who allegedly treated the plaintiff poorly because of her pregnancy.  In a case two years later, it found that in a sexual harassment case, evidence of harassing activity against other female employees occurring outside of the plaintiff’s presence, and at times when the plaintiff was not even employed, was admissible.  The courts are clearly trending towards allowing employees to use “me too” evidence in discrimination and harassment cases both in federal and state court.

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Hirschfeld Kraemer LLP on:

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