Me Too Evidence

While you may have recently seen the phrase “me too” on social media following the Harvey Weinstein allegations, “me too” evidence is actually frequently used in employment litigation. In employment cases, it is often very difficult for a plaintiff to provide direct evidence of an employer’s discriminatory intent. In most cases, plaintiffs can only present circumstantial evidence to show that the employer’s actions were discriminatory. In response, the employer will argue that they had a legitimate, nondiscriminatory reason for firing the employee. Plaintiffs regularly rely on “me too” evidence to refute the employer’s claim that his/her actions were not motivated by discriminatory intent.

“Me too” evidence is usually testimony from other employees meant to demonstrate a discriminatory atmosphere. For example, in Pantoja v. Anton, an employee sued her former employer for race and sex discrimination after he called her derogatory names, inappropriately touched intimate parts of her body and made sexual advances towards her.[1] The appellate court ruled that the trial court should have allowed evidence of the defendant’s “harassing or discriminatory conduct that was witnessed by other employees but not experienced by” the plaintiff.[2] The court reasoned that such evidence showed that the defendant “harbored a gender bias and therefore tended to disprove the ostensible reason for her dismissal.”[3] Without the testimony from other employees, the plaintiff would be unable to successfully prove her employer’s discrimination. Cases like this show how powerful “me too” evidence can be in employment cases.

However, employers can also use this same type of evidence to disprove claims that employees bring against them. Sometimes called “not me too” evidence, this type of evidence is often testimony by other employees that they were not discriminated against and that the employer did not have a discriminatory intent. In fact, courts have regularly held that evidence of an employer’s favorable treatment of other employees is highly relevant in such cases. [4] Ansell v. Green Acres Contracting Co. was one of the first cases to find that an “employer’s favorable treatment of other members of a protected class can create an inference that the employer lacks discriminatory intent.”[5] As a result, defendants today often use “not me too” evidence to rebut discrimination claims by employees.

As you can see, “me too” evidence can be very powerful and influential in employment cases, for both plaintiffs and defendants. In fact, both “me too” and “not me too” evidence are often present in employment cases. In the absence of the all too rare “smoking gun,” the outcome of many employment law cases will depend on the strength of “me too” evidence.

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[1] Pantoja v. Anton, 198 Cal. App. 4th 87, 119, (2011)

[2] Id. at 97

[3] Id. at 114

[4] Ansell v. Green Acres Contracting Co., 347 F.3d 515, 524 (3d Cir. 2003)

[5] Id. at 524