Courts continue to confront whether to admit “me, too” evidence in discrimination trials. Me-too evidence is when the plaintiff seeks to parade before the jury a bunch of witnesses who claim that the defendant discriminated against them, as well. The appeal for plaintiff’s lawyers is the ability to argue, "Where there’s smoke, there’s fire.”
Well, California’s 2nd Court of Appeals affirmed a trial court’s decision to exclude a certain type of me-too evidence; its reasoning is instructive. Let's look at Hatai v. Department of Transportation. et al., decided on March 4.
The opinion sets out the facts: The Asian plaintiff alleged discrimination by his Arab manager, who allegedly exhibited anti-Asian animus. At trial, the plaintiff sought to offer evidence of discrimination against non-Asians because of "general xenophobia against non-Arabs." The trial judge refused to admit the evidence, dryly noting in court, "That's not what you pled in your complaint."
After a three week trial, the jury found against the plaintiff. He appealed, arguing that it was error not to admit the proffered evidence.
The appeals court quickly gutted the argument: “Here, Hatai alleged he is a person of ‘Asian or Japanese race or national origin or ancestry,’ and that he suffered discrimination, harassment and retaliation on the basis of his national origin and/or race. Thus, the ‘me-too’ doctrine entitled Hatai to present evidence that other employees at [a defendant] of East Asian or Japanese descent had been subjected to similar discrimination. However, given the nature of Hatai's lawsuit, the ‘me-too’ doctrine did not entitle Hatai to present evidence of discrimination against employees outside of Hatai's protected class to show discrimination or harassment against Hatai.” (italics in original)
Of course defense lawyers should fight any type of me-too evidence and seek to limit any such evidence, if it must come in at all, to the person or persons who allegedly discriminated against the plaintiff. And, really? Three weeks for a single-plaintiff case? Try that in Texas.