Before “#MeToo” became a movement, it was a well-known, damaging type of evidence to employers litigating discrimination claims. “Me too” in the employment litigation context refers to evidence that employees other than the plaintiff also were also discriminated against. Employers had traditionally sought, with mixed results, to exclude such evidence as improper character evidence under FRE 404(b) or as substantially more prejudicial than probative under FRE 403. Debate raged over admissibility. In 2008, the U.S. Supreme Court tackled the issue and held that “me too” evidence is not per se admissible or inadmissible. See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008). Rather, the Court found, admissibility depends on a fact-intensive inquiry.

In deciding on admissibility, courts consider whether other discriminatory behavior is close in time to the events at issue, whether the same decision maker is involved, and whether the “me too” witness and plaintiff were treated similarly. See Hayes v. Sebelius, 806 F. Supp. 2d 141, 144-45 (D.D.C. 2011). Typically when a court admits “me too” evidence, the court concludes that the evidence may show motive or intent to discriminate.

“Me too” evidence is powerful. Even if only one witness testifies that he/she also experienced the same kind of mistreatment, the jury impact can be profoundly damaging to the defense. So what is an employer facing “me too” evidence to do?

Three Suggestions:

  1. Distinguish: Identify the potential “me too” witnesses early in discovery. Try to show how different they are from the plaintiff and thus not “similarly situated.” Every difference helps show that any probative value is substantially outweighed by the danger of unfair prejudice under FRE 403.
  2. Mini-Trials: When multiple “me too” witnesses exist, consider the mini-trial argument under FRE 403. That is, if the court allows evidence about alleged mistreatment of others, the employer will have to defend each vigorously, wasting time and introducing needlessly cumulative evidence.
  3. Join ‘em: Identify in discovery whether the employer may have “not me” comparator evidence to combat “me too” evidence. “Not me” evidence may refer to evidence of other, similarly situated employees within the plaintiff’s protected class who were not subjected to alleged mistreatment/adverse action. It may also refer to employees outside the plaintiff’s protected class who are similarly situated to the plaintiff and were treated in the same or similar way. This suggestion may require an employer to take a broader-than-usual view of discovery because the helpful “not me” evidence may originate in other locations within the organization outside what might normally be considered a reasonable scope of discovery. For example, assume the plaintiff is fired for violating a company-wide policy against personal cell phone use. If the employer fired other employees outside the plaintiff’s protected class for the same thing, the employer may want to use that evidence to rebut an inference of discrimination, even if the other employees are located in different locations/states from the plaintiff. Ordinarily, the employer might not agree to a multi-state scope of discovery. But the benefit of having this “not me” evidence admitted may outweigh the costs associated with broader discovery. Employers should carefully consider this decision with the help of counsel.

The #metoo era presents significant challenges for organizations facing “me too” evidence in employment litigation. Addressing it early in discovery can help improve the likelihood of success at summary judgment, motions in limine, and trial.