Court Restricts Use of “Me-Too” Evidence to Support a Discrimination Claim

By: Sam G. Sherman, Esq.

In 2009 and 2011 decisions, California courts held that Plaintiffs can support a claim of discrimination with “me-too” evidence–evidence that the employer or a particular supervisor discriminated against other similarly situated employees in the past. Common examples involve a woman supporting a pregnancy discrimination case with evidence that the employer had terminated other female employees upon return from maternity leave.

In Hatai v. Department of Transportation, the plaintiff claimed he was discriminated against based on his Asian ancestry. He then tried to support his discrimination case against his Arab supervisor with evidence that this supervisor discriminated against anyone that was not Arab. The trial and appellate court ruled that such evidence was not admissible. Plaintiff could support his case by showing that the supervisor discriminated against other Asians, but not with evidence that the supervisor discriminated against non-Asians.

While this case is, technically, a win for employers, there are still lessons to be learned. First, plaintiff’s biggest error was claiming that the supervisor discriminated against non-Asians. Plaintiff would have had more successful by arguing that the supervisor favored Arabs. A court would have likely admitted such evidence. Second, plaintiff painted a picture of a supervisor that created a generally miserable work environment. While not illegal, it was certainly costly to the Department of Transportation (DOT). This “win” likely cost the DOT hundreds of thousands of dollars in attorneys’ fees. Finally, employers shouldn’t ignore such complaints just because the conduct at issue is not illegal. A bad supervisor can be costly even if the conduct does not violate the law.

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