Beware of the 'Me-Too' Evidence Riptide
Posted May 21, 2018

“The Times They Are A Changin’” (Bob Dylan, 1964). The #MeToo movement is in full force! Although the movement has more recently become a regular topic of discussion across social media and in the news, “me too” evidence, as a legal concept, has been around for several years.

In the employment law arena, and particularly in discrimination and sexual harassment cases, many plaintiffs’ attorneys use what is known as “me too” evidence to further support their particular plaintiff’s claims of mistreatment. Specifically, “me too” evidence is testimony or other evidence that the employer has treated its other employees in the same allegedly discriminatory manner as the plaintiff, or perhaps that a specific supervisor has sexually harassed other employees in the same or similar way as that supervisor harassed the plaintiff in the case at hand. Plaintiffs’ attorneys regularly use this type of evidence to bolster their own plaintiffs’ claims by showing a pattern of misconduct.

No per se rule applies to “me too” evidence, and whether or not it will be deemed admissible by a court involves not only a relevance determination under Federal Rules of Evidence 401-403, but also a factual analysis based on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case. In determining admissibility, the the court will consider: (1) whether the same decision maker(s) are involved; (2) whether the same type of adverse action is present; (3) temporal and geographical proximity; and (4) whether the additional (me too) employee is similarly situated in other relevant respects.

Notably, there have been several cases that have held “me too” evidence to be irrelevant in harassment cases if the plaintiff was not aware of that evidence. See Burnett v. Tyco Corp., (2000) 203 F. 3d 980, 981; Prior v. Seyfarth Shaw, (2000) 212 F. 3d 976, 978.

For additional information or assistance in defending against harassment or discrimination claims, including the use of “me too” evidence, contact the employment attorneys at LightGabler.

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