Four tips to help get your "Me Too" evidence admitted

As employment litigators, we are often tasked with proving that the "bad actors" in our cases acted with discriminatory intent and/or bias. It's no easy task to put on evidence of what was playing out in a bad actor's head while they were, for example, harassing or disciplining your client. It's rare when a defendant admits to having a discriminatory motive, and we are often left looking for circumstantial evidence of bias instead. An effective way to prove bias and discriminatory motive is through "me too" evidence.

"Me too" evidence is evidence that shows that a bad actor discriminated against individuals other than the plaintiff. Generally, this means a history of discrimination against people who are similarly situated. But what happens if there is great "me too" evidence of a bad actor discriminating against people, other than your client, who are of a different protected class?

Here is an example: You represent a client who works at a medical facility. She is from Mexico, and was subject to derogatory language and discriminatory conduct from a supervisor, and was ultimately fired. Through discovery, you uncover that the supervisor has an employment file full of dramatic complaints of discrimination against African American co-workers. The evidence is shocking and will be powerful in front of a jury. What can you do to make sure that evidence comes in?

We have some practical tips for how to craft pleadings in your case and how to characterize the evidence you uncover to maximize the likelihood you can defeat the inevitable motions in limine, get that evidence admitted, and win your case.

Keep the discrimination allegations broad and open-ended. Assume (especially for purposes of the pleading stage) that your client is not the only person who has been wronged by the bad actor. If your client was subjected to anti-Vietnamese comments in the workplace, it's possible (and perhaps even likely) that the harasser made other racist comments in the past. In addition to pleading the discrimination directly, also phrase the discrimination or harassment in the negative based on the harasser's race.

Allege favoritism. Hatai v. Department of Transportation (2013) 214 Cal.App. 4th 1287 is an important case that the defense will likely use to try to keep "different protected-class 'me too' evidence" excluded. In Hatai, because the plaintiff only alleged he was a person of Asian or Japanese ancestry, "the 'me-too' doctrine did not entitle [plaintiff] to present evidence of discrimination against employees outside of [plaintiff]'s protected class to show discrimination or harassment against [plaintiff]." Id. at 1297-1298 (emphasis in original). Instead, the court held a plaintiff must plead a favoritism claim alleging that a bad actor discriminated against individuals not of the same protected class as the bad actor, in order to introduce evidence of complaints by members outside of plaintiff's protected class. Id. at 1298. For example:

Instead of pleading this: "Defendants subjected Plaintiff to discrimination based on her race and national origin."

Plead this: "Defendants subjected Plaintiff to discrimination based on her race and national origin. Defendants further subjected Plaintiff to discrimination because she was non-Caucasian, and engaged in favoritism towards Caucasian employees."

This way, if (and when) discovery reveals that the harasser has also been accused of saying discriminatory remarks towards and about individuals outside of plaintiff's protected class, that evidence will much more likely be considered relevant.

Allege failure to prevent discrimination, harassment, and/or retaliation. This cause of action is always helpful to have in any FEHA complaint. If your client experienced discrimination, harassment, and retaliation in the workplace, the employer failed to prevent it (assuming they knew or should have known about it). By having this cause of action, prior evidence of discriminatory or harassing conduct becomes relevant because it puts the employer on notice of a bad actor's discrimination and harassment, and bias towards certain individuals. This then imposes an affirmative obligation on the employer to prevent the discrimination, harassment, or retaliation. And remember, your client does not need to have known about the prior accusations or complaints in order for evidence of that to come in.

Plead carefully to stay in state court. Case law regarding admissibility of "me too" evidence is far more favorable in California state court than in federal court. If there are facts that support it, name the harasser individually (assuming they are in the same state as your client) to break diversity and prevent the employer from removing the case to federal court.

David Angeloff is a multi-disciplinary employment trial lawyer at Stalwart Law Group, APC who practices in California, New York, and the District of Columbia. Cindy Hickox is an attorney at Stalwart Law Group, APC with a diverse area of practice, focusing largely on plaintiff-side employment matters.