Fenwick Employment Brief: California Court Addresses Admissibility Of "Me Too" Evidence Of Discrimination

In Hatai v. Dept. of Transportation, a California court of appeal upheld a trial court's decision to exclude "me too" evidence of discrimination from individuals outside of the plaintiff's protected class, but in doing so highlighted when such evidence will be admissible in a discrimination case.

Kenneth Hatai was a Senior Traffic Engineer of Asian heritage working at Caltrans in Los Angeles. His supervisor, Sameer Haddadeen, is of Arab ancestry. Hatai and his co-workers disliked Haddadeen's management style, claiming he made employees suspicious of one another and wrongfully accused them of misconduct such as falsifying time cards. Karem Al-Chokhachi (an employee of Arab descent) was also offended when Haddadeen allegedly told him in Arabic that they should be friends and "stick together."

Hatai, Al-Chokhachi, and other employees complained to Caltrans, accusing Haddadeen of discrimination and harassment based on race and national origin. Caltrans investigated, but ultimately found no legal violation. Hatai complained multiple times about Haddadeen, but never to the effect that Haddadeen discriminated against him because of his Asian heritage (a point that he repeatedly conceded in litigation).

When Hatai's performance faltered, Haddadeen placed him on a written warning documenting eleven examples of his insubordination and failure to meet deadlines. Hatai responded with legal claims against Caltrans and Haddadeen for discrimination and harassment. Hatai did not allege that Haddadeen discriminated against all non-Arabs; rather, he alleged discrimination against Hatai due to his Asian heritage.

The defendants moved to exclude "me too" evidence from other employees (both Asian and non-Asian) who claimed that Haddadeen discriminated against them. In response, Hatai sought to reposition the case as one of Arab favoritism rather than anti-Asian discrimination. The trial court rejected Hatai's theory and excluded the "me too" evidence.

While the court excluded the evidence in this particular case, it observed that such evidence will be admissible in other contexts, for example, when there is favoritism of one protected class that has an adverse effect on multiple related protected classes (e.g., multiple national origins). When such evidence is admissible, it can and likely will significantly expand discovery and make for a more complex case.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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