Admissibility of “Me Too” Evidence in California Employment Cases

“Me too” evidence is evidence of discrimination against other employees of the same employer typically in the form of declarations or testimony of these other employees.

Earlier this month, in Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties, 2009 Cal. App. LEXIS 648, a California Court of Appeal addressed the admissibility of “me too” evidence in discrimination cases.

In Johnson, an employee sued her employer alleging that she was fired because she was pregnant. The Court of Appeal analyzed the admissibility of “me too” declarations from former employees alleging that they were fired because they became pregnant, knew of someone fired because they were pregnant, or were driven to resign after it became known that they were trying to become pregnant. The Johnson Court found this “me too” evidence to be per se admissible as follows:

“Here we can say as a matter of law that the ‘me too’ evidence presented by plaintiff in the instant case is per se admissible under both relevance and Evidence Code section 352 standards. The evidence sets out factual scenarios related by former employees of defendant that are sufficiently similar to the one presented by plaintiff concerning her own discharge by defendant, and the probative value of the evidence clearly outweighs any prejudice that would be suffered by defendant by its admission. Dissimilarities between the facts related in the other employees’ declarations and the facts asserted by plaintiff with regard to her own case go to the weight of the evidence, not its admissibility.”

Finally, it is also noteworthy that the Johnson Court found that, while each of following, by themselves, could not defeat an employer’s motion for summary judgment, when taken together, did create a triable issue of material fact prohibiting summary judgment for the employer:

  • the suspicious timing of the firing
  • the employer’s failure to give a specific reason for termination
  • inconsistencies in the employee’s performance evaluations

Accordingly, Johnson is powerful authority for employees making a circumstantial case of discrimination against their employers.

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