Title: 'What About Me (Too)?' The Case for Admitting Evidence of Discrimination Against Non-Parties
Abstract: Plaintiffs alleging workplace discrimination often seek to bolster their argument by introducing evidence of discrimination against other similar employees by different supervisors, or, as it is commonly known, me too evidence. Because these witnesses almost by definition lack knowledge of the plaintiff's particular case, many courts have excluded the evidence as irrelevant and unfairly prejudicial under Federal Rules of Evidence 401 and 403. The Supreme Court granted cert on the issue, but decided the case on procedural grounds, leaving district courts to fend for themselves. This Comment attempts to resolve the me too quandary by linking the admissibility of me too evidence to the underlying claim presented. Me too evidence, I assert, will almost always clear the low relevancy bar set by Rule 401, since courts regularly admit evidence of similar reliability. But prejudice under Rule 403 is a distinct inquiry, and I conclude that evidence of a hostile work environment or discriminatory RIF should withstand the Rule 403 balancing test because each occurs with the company's knowledge. By contrast, evidence of individual discrimination - whose link to the plaintiff's case is by definition attenuated, and knowledge of which cannot necessarily be imputed to the employer - should not withstand Rule 403's balancing test.
Publication Year: 2009
Publication Date: 2009-01-01
Language: en
Type: article
Access and Citation
Cited By Count: 3
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