“Me Too” Evidence of Discrimination Against Others May Depend Upon How Original Complaint of Discrimination Is Framed in the Complaint

California has good law for employees regarding the admission of evidence that the employer discriminated against other employees, commonly referred to as “me too” evidence. Case law is clear that an employee can submit evidence that the decision maker discriminated against another employee on the same basis for which the employee claims discrimination. See Pantoja v. Anton (2011) 198 Cal.App.4th 87 (employee claiming gender discrimination can submit evidence that decision maker harassed and made sexist comments towards other female employees, Johnson v. United Cerebral Palsy (2009) 173 Cal.App.4th 740 (employee claiming pregnancy discrimination can submit evidence of discrimination against other employees).

The reason this “me too” evidence is admissible is because it demonstrates the intent or motive of the decision maker or wrongdoer. It may also cast doubt upon the employer’s stated reason for the termination or other employment action.

Along comes Hatai v. Department of Transportation (March 3, 2013) ___Cal.4th_____, which casts a slightly different variation on the same theme. It also cautions employees and their lawyers to be exceedingly careful on how they plead a claim of discrimination, if they want to submit “me too” evidence.

Mr. Hatai’s complaint alleged that he was discriminated against due to his national origin (Japanese) and his race (Asian). However, as the case proceeded, Mr. Hatai sought to argue that his supervisor, who was of Arab descent, discriminated against all employees who were not of Arab descent. As such, he sought to introduce “me too” evidence that other employees were discriminated against because they were not of Arab descent.

The company objected to the evidence, stating that the employee was “…repositioning the case.” The trial court prohibited the employee from introducing this evidence, simply stating “[t]hat’s not what you said in your complaint.” Mr. Hatai’s lawyers protested that the supervisor in question stated that “We Arabs should stick together”, and sought to introduce evidence as to how a number of non-Arab employees were treated.

The Court of Appeals agreed with the employer in a scathing opinion, taking Mr. Hatai to task for providing “highly inconsistent” deposition testimony. It held that since Mr. Hatai’s complaint alleged discrimination based on his race/national origin as an Asian and/or Japanese, how a variety of employees who were not Asian and/or Japanese were treated was not relevant.

The cautionary tale here is to be careful how you plead your case. If Mr. Hatai had originally pled his case to allege an alternative basis for discrimination as discrimination because he was not an Arab, perhaps the Court would have permitted this “me too” evidence.

The second cautionary tale is to be careful about presenting consistent and credible evidence: Throughout almost every line of this opinion, it is clear that the Court was indignant about a variety of inconsistent and possibly less than credible positions, and that this unduly influenced the Court’s holding. If the Court had sympathy for Mr. Hatai, it could have simply permitted him to amend his complaint, or construed his complaint more broadly, rather than in the narrow and technical manner it did.

Bad facts here made for bad law, and both the employee and the Court need to take some responsibility for this here. Moving forward, employees should still seek to introduce “me too” evidence, and to plead their claims as broadly as possible.

Jody I. LeWitter
April 19, 2013