What about “Me (Too)”? The Case for Admitting Evidence of Discrimination against Nonparties

While the continued existence of workplace discrimination is not seriously in dispute, the type of evidence available to employees who bring discrimination suits is. Evidence of policies discriminating against members of a protected class has long been admissible to prove the plaintiff’s own case. The same is true of evidence of a particular supervisor’s discriminatory attitude toward the plaintiff. Yet no such consensus exists with respect to anecdotal evidence of discrimination against nonparties—or, as it is known colloquially, “me too” evidence.

“Me too” evidence is most often introduced to prove the presence of a culture or atmosphere of discrimination or of a hostile work environment. Generally, it takes the form of testimony by one of the plaintiff’s former coworkers that she, too, suffered discrimination at the hands of the defendant. Defendants, for their part, attack “me too” evidence on both admissibility prongs. They argue that “me too” evidence does not meet Federal Rule of Evidence 401’s relevancy threshold because it has no “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” They further contend that even if it is relevant under Rule 401, it should be excluded under Rule 403, because “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

In 2008, the Supreme Court granted certiorari in Mendelsohn v Sprint/United Management Co, an otherwise unremarkable employment discrimination case that hinged on the admissibility of “me too” evidence. To the dismay of some commentators, however, the Court declined to resolve this issue. While it noted in dicta that a per se rule barring the admission of such evidence would be reversible error, it offered little guidance to lower courts tasked with admitting or excluding “me too” evidence. The admissibility of “me too” evidence thus remains an open question.