April 10, 2013

“Me Too” – Or Perhaps Not – The California Court of Appeals Excludes “me too” Evidence

On March 28, 2013, the California Court of Appeals upheld a Los Angeles Court’s ruling in Hatai v. Dept. of Transportation, precluding the Plaintiff, Hatai, from presenting “me too” evidence from other employees allegedly discriminated against by Hatai’s boss.

Hatai sued the Department of Transportation (CalTRANS), his current employer, alleging he was discriminated against because of his Japanese ancestry and his Asian race.  At the time of trial Hatai attempted to broaden his argument by claiming that his boss, an Arab, discriminated against all employees who were not of Arab descent.

Before trial CalTRANS brought a Motion In Limine to exclude evidence that Hatai’s supervisor had discriminated against non-Asians, claiming that discrimination against anyone of non-Arab descent was not the claim brought in his lawsuit.  Hatai’s counsel conceded that his theory was that Hatai’s supervisor had discriminatory animus against anyone who was not Arab.

The Court ruled that since Hatai’s claim was originally pled as an anti-Asian claim, he was only entitled to introduce evidence under the “me too” doctrine – i.e., that employees had also been subject to similar discrimination.  But, it also found that Hatai had not shown enough evidence of pro-Arab favoritism to allow such evidence.

The California Court of Appeals affirmed the trial court’s decision.  In Johnson v. United Cerebral Palsy, the plaintiff had claimed her employer fired her based on her pregnancy, and was allowed to submit evidence that the employer had fired other women also because they were pregnant.  The Johnson Court ruled that such “me too” evidence was admissible because evidence of pregnancy discrimination against other employees was sufficiently similar to the claim set forth by the plaintiff.

In Hatai, The Court of Appeals held that Hatai’s evidence was not sufficiently related to his claim of discrimination or harassment based on Asian or Japanese ancestry.  Therefore, “me too” evidence would only be allowed with respect to other CalTRANS employees of similar descent or ancestry who allegedly had been discriminated against.  Based on his pleading, any broader admissibility of pro-Arab favoritism would not be admitted.

While this case sets forth a favorable decision for employers, in some part this was based upon the Plaintiff’s failure to specifically plead that his supervisor discriminated against non-Arabs, as opposed to Asians.  As has been consistent in California, “me too” evidence is admissible in discrimination and harassment cases.  While generally this will be limited to individuals of the same protected category alleged by a plaintiff, employers should be aware that in a favoritism kind of case, “me too” evidence may be admissible on a much broader scale.