Litigation is a battle of persuasion. “Me too” evidence is often at the center of that battle. Plaintiffs routinely request information about other discrimination and harassment claims against the employer to bolster their own claim. Employers (recognizing the power of “me too” evidence) typically refuse the plaintiffs’ requests for that information. That refusal may be more difficult after Sandoval v. American Building Maintenance Industries, Inc., a recent Eighth Circuit decision which held that information about other discrimination and harassment claims is “highly relevant” and “highly probative” evidence.
The plaintiffs in Sandoval claimed that their coworkers created a hostile work environment by subjecting them to unwanted sexual conduct and then inflicting adverse job actions when they refused or disagreed with that sexual conduct. The plaintiffs had to prove that the Company knew or should have known about their harassment and failed to take prompt remedial action since the hostile work environment was created by a nonsupervisory coworker. The plaintiffs conceded that the Company did not have actual knowledge of their harassment. So, the plaintiffs attempted to prove that their employer should have known about their harassment by producing evidence that during the timeframe in which they were harassed at least 85 other employees reported similar treatment by their alleged harassers. The district court refused to consider that evidence. The district court then dismissed the sexual harassment claim on the grounds that the plaintiffs did not produce sufficient evidence to prove their claims.
The plaintiffs appealed the dismissal. The Eighth Circuit stated that it has long held that harassment directed towards other employees is relevant and must be considered when judging the severity and pervasiveness of workplace harassment. The Court explained that “[i]rrespective of whether a plaintiff was aware of the other incidents, the evidence is highly probative of the type of workplace environment she was subjected to, and whether a responsible employer should have discovered the [ ] harassment.” The Eighth Circuit Court of Appeals concluded that the district court was wrong in disregarding the plaintiffs’ evidence of widespread sexual harassment.
Sandoval clearly holds that employees are allowed to offer evidence of other employees’ experiences in proving harassment. The Sandoval thinking does not appear to be limited to harassment cases. Last year, the United States Supreme Court decided an age discrimination case in which the district court excluded “me too” testimony about discrimination by supervisors who did nothing to the plaintiff. In Sprint/United Management Co. v. Mendelsohn, the Supreme Court held that “me too” evidence is neither per se admissible nor per se inadmissible. The Court explained that the “question of whether evidence of discrimination by other supervisors is relevant . . . is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” The California Court of Appeals reached a similar decision last month in Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties, a disparate treatment case. The Court stated that “evidence of prior acts of discrimination is relevant to an employer’s motive in discharging a plaintiff.”
Sandoval is an extremely favorable decision for employees. The Rules of Civil Procedure state that the parties are entitled to relevant information. And, Sandoval holds that information about “other employees’ harassment” is relevant. So, employees should not hesitate to request “other harassment” evidence from the employer defendant, especially since there is a reason employers do not want employees to have that information. It is persuasive. The fact that other employees made similar claims can help the employee show that harassment was part of the workplace environment. As the Johnson Court mentioned, “other harassment” evidence can create a fact question on the issue of pretext thereby helping employees survive summary judgment. Information about other employees’ discrimination or harassment is a viable source of information in a discrimination or harassment case. Plaintiffs should request (and fight for) that evidence from their employers.
The plaintiffs in Sandoval claimed that their coworkers created a hostile work environment by subjecting them to unwanted sexual conduct and then inflicting adverse job actions when they refused or disagreed with that sexual conduct. The plaintiffs had to prove that the Company knew or should have known about their harassment and failed to take prompt remedial action since the hostile work environment was created by a nonsupervisory coworker. The plaintiffs conceded that the Company did not have actual knowledge of their harassment. So, the plaintiffs attempted to prove that their employer should have known about their harassment by producing evidence that during the timeframe in which they were harassed at least 85 other employees reported similar treatment by their alleged harassers. The district court refused to consider that evidence. The district court then dismissed the sexual harassment claim on the grounds that the plaintiffs did not produce sufficient evidence to prove their claims.
The plaintiffs appealed the dismissal. The Eighth Circuit stated that it has long held that harassment directed towards other employees is relevant and must be considered when judging the severity and pervasiveness of workplace harassment. The Court explained that “[i]rrespective of whether a plaintiff was aware of the other incidents, the evidence is highly probative of the type of workplace environment she was subjected to, and whether a responsible employer should have discovered the [ ] harassment.” The Eighth Circuit Court of Appeals concluded that the district court was wrong in disregarding the plaintiffs’ evidence of widespread sexual harassment.
Sandoval clearly holds that employees are allowed to offer evidence of other employees’ experiences in proving harassment. The Sandoval thinking does not appear to be limited to harassment cases. Last year, the United States Supreme Court decided an age discrimination case in which the district court excluded “me too” testimony about discrimination by supervisors who did nothing to the plaintiff. In Sprint/United Management Co. v. Mendelsohn, the Supreme Court held that “me too” evidence is neither per se admissible nor per se inadmissible. The Court explained that the “question of whether evidence of discrimination by other supervisors is relevant . . . is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” The California Court of Appeals reached a similar decision last month in Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties, a disparate treatment case. The Court stated that “evidence of prior acts of discrimination is relevant to an employer’s motive in discharging a plaintiff.”
Sandoval is an extremely favorable decision for employees. The Rules of Civil Procedure state that the parties are entitled to relevant information. And, Sandoval holds that information about “other employees’ harassment” is relevant. So, employees should not hesitate to request “other harassment” evidence from the employer defendant, especially since there is a reason employers do not want employees to have that information. It is persuasive. The fact that other employees made similar claims can help the employee show that harassment was part of the workplace environment. As the Johnson Court mentioned, “other harassment” evidence can create a fact question on the issue of pretext thereby helping employees survive summary judgment. Information about other employees’ discrimination or harassment is a viable source of information in a discrimination or harassment case. Plaintiffs should request (and fight for) that evidence from their employers.
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