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.