Evidentiary issues in employment litigation

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Marvin brings a disparate treatment claim against your client alleging race and gender discrimination. He also alleges a hostile work environment.

While he has only been employed by your client for a few weeks, he has managed to gather the support of a few co-workers who are willing to testify that they too were discriminated against or harassed by your client. Marvin intends to offer their testimony at trial in support of his claims.

Naturally, several questions come to mind. For example, how is this relevant to Marvin’s allegations that he was discriminated against and/or harassed? Under what circumstances, if any, can this testimony be excluded? Does it make a difference whether these employees all worked under the same supervision as Marvin? Does it matter if Marvin’s claims allege individualized wrongdoing, as opposed to alleging a pattern of practice? Does the fact that Marvin alleges a hostile work environment make a difference?

The evidence Marvin seeks to introduce is often referred to as “me too” evidence. Several federal jurisdictions, including the 7th Circuit, have addressed the issue of “me too” evidence in length. Generally, for pattern of practice claims, testimony from other employees about their experiences may be relevant if related to the employer’s alleged discriminatory intent and allowed into evidence, assuming it is not overly prejudicial.

For individualized claims of discrimination, the plaintiff must show that the circumstances involving the other employees are logically and reasonably related to the alleged employment action(s) at issue. This will typically require, at the very least, a connection to the same decision-maker. In many jurisdictions, this may also require a showing that the other employee is otherwise similarly situated to the plaintiff in other respects. The probative value of “me too” evidence typically decreases if pattern of practice allegations are not present. For harassment claims, the probative weight of such evidence actually increases, since the work environment itself is at issue.

At the end of the day, Federal Rules of Evidence (“FRE”) 401 and 403 rule. As with other types of evidence, “me too” evidence, even if relevant, can be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion, delay, etc. See FRE 401 and 403.

To better understand the analysis that goes into whether “me too” is admissible, let us look first at Sprint/United Management Co. v. Mendelson, 128 S.Ct. 1140 (2008). In this case, Mendelson, the complaining employee, was terminated as part of a Reduction in Force (“RIF”). She was the oldest manager in her unit, but was rated as the poorest performer.

Following her discharge, she brought an age discrimination suit against her employer, Sprint. As support for her claims, she sought to introduce testimony from several other employees that they too were treated unfairly by Sprint.

The District Court, in a “minute order,” ruled that only those employees who were similarly situated to the plaintiff could testify in this regard. The 10th Circuit Court of Appeals reversed the district court’s holding as a per se bar on the other “me too” evidence. The 10th Circuit noted that “because direct testimony as to the employer’s mental processes seldom exists … evidence of the employer’s general discriminatory propensities may be relevant and admissible to prove discrimination.”

The Supreme Court, in reviewing the matter, noted that “me too” testimony is neither per se admissible nor per se inadmissible. Whether such testimony satisfies FRE 401 and 403 is “fact-based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” (Note: the Supreme Court sent the case back to the District Court for further evaluation without specifically stating whether the evidence at issue was admissible or not.)

Under this framework, it is somewhat easier for plaintiff’s counsel to introduce “me too” evidence in pattern of practice claims than in individualized claims of discrimination. In pattern of practice claims, discrimination and/or harassment against others in a particular protected class is at the heart of the theory of the case. Accordingly, its probative value is often higher than it would be if the case was based on individualized claims of discrimination.

That being said, all types of cases require the evidence at issue to be related to the circumstances of the case, which essentially means that there must be a connection between the evidence and the intent of the employer. Unless the evidence sought to be introduced is closely related to the circumstances and theory of the case, it will be excluded. The 7th Circuit has long recognized that “evidence of discrimination against other employees is relevant only if the plaintiff is able to show that the action taken against the other employee was based on discrimination….” Stopka v. Alliance of American Insurers, 141 F.3d 681, 687 (7th Cir. 1998). Accordingly, “when the evidence appears to be of slight probative value, district courts may properly exclude it under Rule 403 to avoid a series of collateral ‘trial[s] within the trial’ which would result in confusion and undue delay.” Id. [citations omitted.]

“Me too” evidence is often, but not always, closely related to the circumstances of the case if similarly situated employees (employees working under the same supervisor and department as the complaining employee) have experienced the same type of discrimination and/or harassment as the complaining employee. This is because employment discrimination cases hinge on discriminatory intent — whether the employer held some type of discriminatory animus against an employee which was acted upon.

Indeed, it would be difficult to argue that a supervisor’s discriminatory treatment of others in the complaining employee’s protected class is not probative of whether that supervisor had discriminatory intent in his/her dealing with the complaining employee. As a general rule of thumb, “me too” evidence can be relevant, and therefore admissible, to the extent it can be tied to the state of mind of the decision-maker(s).

For harassment cases, the scope of what all can be considered is somewhat broadened to the extent courts look to the work environment itself. As the 10th Circuit has noted, “one of the critical inquires in a hostile environment claim must be the environment. Evidence of a general work environment therefore — as well as evidence of specific hostility directed toward the plaintiff — is an important factor in evaluating the claim.” Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987).

The takeaway from all of this is that “me too” evidence can be a viable source of evidence in employment cases. As always, employers and their counsel should take steps to ensure that supervisors and managers are treating employees fairly and equally across the board. This may mean promptly taking disciplinary action, up to and including termination, against decision-makers who discriminate and/or harass other employees.

Look for part 2 of Warren Buliox’s discussion of evidentiary issues in employment litigation in the July 20 Job Cites column.