"Me Too" Evidence in Employment Litigation: Pursuing Admission or Exclusion of Propensity Evidence

Employees in discrimination, retaliation, and harassment litigation often seek to use "me too" evidence to prove their cases, and employers may wish to keep such evidence out, or use evidence of the plaintiff's prior history against her. All these tactics present tricky evidentiary issues.

The admissibility of "me too" evidence is subject to analysis under Federal Rules of Evidence 401, 403, and 404. The trial court has broad discretion in deciding whether to admit or exclude evidence, taking into account several factors related to the relevance of the evidence, the burden on the opposing party of responding to "me too" allegations, and potential for juror confusion.

Employment counsel intending to introduce "me too" evidence must develop their trial strategy with this intention in mind, from the drafting of the initial or responsive pleading through their closing argument. Counsel seeking to exclude "me too" evidence should strategically use discovery, motions in limine, and trial objections to block its admission.

Listen as our authoritative panel of employment litigators discusses best practices for dealing with "me too" evidence in employment discrimination, retaliation, and harassment lawsuits.

1. Applicability of Federal Rules of Evidence 401, 403, and 404 to "me too" evidence
2. Factors courts consider in determining the admissibility of "me too" evidence
3. Strategies for pursuing admissibility of "me too" evidence
4. Strategies for pursuing exclusion of "me too" evidence

The panel will review these and other key issues:

• What factors do trial courts consider when determining whether to admit or exclude "me too" evidence?
• What are some considerations and best practices for counsel pursuing the admissibility of "me too" evidence?
• What are some considerations and best practices for counsel opposing the admissibility of "me too" evidence?