Limiting the use of "me too" evidence in employment discrimination cases.

• Author: Poole, J. Ray

The American workforce enjoyed remarkable prosperity during the last several years. The national rate of unemployment plummeted from a high of 7.8 percent in June 1992 to a low of 3.9 percent in October 2000.[1] The decline in Florida's unemployment rate was even more dramatic. In Florida, unemployment fell from a high of 8.8 percent in February 1992 to a low of 3.6 percent in December 2000.[2] Meanwhile, the average hourly wage of an American worker rose and is now 41 percent higher than in 1990, while inflationary pressures were kept in check.[3]

Despite the rosy economic picture of low unemployment, plentiful opportunities for career advancement, and higher wages, the number of employment discrimination cases and EEOC charges of discrimination filed rose annually during the past decade. From 1990 to 1998, the number of employment discrimination cases filed each year in federal courts tripled.[4] During the same period, annual filings of EEOC charges of discrimination that alleged unlawful harassment or retaliation in the workplace nearly doubled.[5]

Recent economic indicators suggest that, in contrast with the prosperity of the last decade, the economy may now be faltering. Spurred by massive layoffs in the telecommunications industry and manufacturing firms such as DaimlerChrysler, the national unemployment rate has risen during recent months.[6] In addition, the gross domestic product fell precipitously during the third and fourth quarters of last year.[7] Meanwhile, the Federal Reserve has made a series of downward adjustments in the prime rate in response to growing concerns about sluggishness on Wall Street.

As the economy weakens, the number of formal complaints of employment discrimination filed annually, both as lawsuits and EEOC charges of discrimination, is likely to soar. As the unemployment rate rises, workers are likely to become frustrated as they compete for fewer job opportunities. Desperate, unemployed workers will likely blame employers as the source of their problems. When that happens, employers will become convenient targets of employment discrimination complaints.

The Problem

As more employees become vocal about perceived discrimination in the workplace and the number of formal complaints of employment discrimination rise, plaintiffs in disparate treatment employment discrimination cases are more likely than ever to discover coworkers who have made similar complaints of discrimination. The issue then becomes whether or to what extent a plaintiff may introduce evidence concerning a coworker's complaints of discrimination as proof of an employer's discriminatory motives and intent. The admissibility of this anecdotal evidence, often referred to as "me too" evidence, often is a source of contention between attorneys who represent plaintiffs and those who represent management in employment cases. It has also been the subject of debate among courts and scholars.[8]

The potential impact of "me too" evidence on a jury cannot be overestimated. Plaintiffs in employment discrimination cases ultimately bear the burden of persuading the trier of fact that an employer intentionally discriminated against them.[9] However, plaintiffs rarely have direct evidence of an employer's discriminatory intent.[10] Instead, typically they are forced to rely on circumstantial evidence to establish an employer's discriminatory motives and intent.

In the absence of direct evidence of an employer's discriminatory animus, "me too" evidence can be particularly powerful in a disparate treatment employment discrimination case. Indeed, the Sixth Circuit characterized "me too" evidence as "`smoking gun' type evidence" in the absence of direct evidence of discriminatory intent.[11] It invites jurors to conclude that "where there's smoke, there's fire."[12] For that reason, attorneys who represent management in employment discrimination cases should make every effort to exclude or at least limit the introduction of "me too" evidence at trial.

The Rules of Evidence

As a general rule, all relevant evidence is admissible.[13] The rules of evidence broadly define relevant evidence as that which has any tendency to make a material fact more or less probable.[14] However, there are limitations on the admissibility of otherwise relevant evidence. Relevant evidence is inadmissible when it is unfairly prejudicial, leads to confusion of the issues, or misleads the jury.[15]

Similar fact evidence of other wrongs or acts presents a unique problem. Evidence of other wrongs or acts may be admissible as proof of motive or intent.[16] On the other hand, it is inadmissible to demonstrate propensity, i.e., that a person acted in conformity with his or her prior actions on a particular occasion.[17] Thus, when assessing the admissibility of such evidence, courts must carefully weigh the danger that jurors will consider the evidence for the improper purpose of establishing a person's propensity to act in a particular manner. In addition, courts should consider whether the evidence will lead to confusion by creating a trial within a trial.

In the context of employment discrimination cases, similar fact evidence of other wrongs or acts usually takes the form of "me too" evidence. Plaintiffs may offer evidence concerning an employer's treatment of other employees as proof of the employer's discriminatory motives and intent. Attorneys who represent management, however, will typically counter by arguing that the "me too" evidence is unfairly prejudicial for one reason or another.

Courts disagree over the extent to which "me too" evidence is admissible in employment discrimination cases. Some courts have taken a liberal view of such evidence. For example, the Eighth Circuit generally admits "me too" evidence on the basis that it serves as "background evidence" that is...