©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 183 Yet a Court of Appeal decision, upholding a jury verdict of race and gender discrimination, disputed the “same actor rule,” stating: “Evidence that the same actor conferred an employment benefit on an employee before discharging that employee is simply evidence and should be treated like any other piece of proof. … Placing it in a special category as a ‘rule’ or ‘presumption’ or stating it creates a ‘strong inference’ attaches undue influence to same actor evidence and threatens to undermine the right to a jury trial by improperly easing the burden on employers in summary judgment and postverdict motions.”323 Although the California Supreme Court agreed to review the case, the parties then settled the matter, leaving in doubt the status of the “same actor rule” for purposes of FEHA cases.324 6.16.3 Requiring admissibility of “me too” evidence Discrimination plaintiffs often seek to introduce evidence that other employees—who are not themselves plaintiffs—also suffered discrimination at the hands of the defendant employer. Federal and state courts generally treat “me too” evidence on a case-by-case basis, weighing the evidence’s probative value against its potential to create undue prejudice, confusion, or waste of time. The U.S. Supreme Court, in 2008, confirmed that there is no rule necessarily requiring trial courts either to admit or to exclude such “me too” evidence.325 In California it’s different. In 2011, a Court of Appeal decision overruled a trial court’s exclusion of “me too” evidence. The trial court had held that evidence of sexual harassment, to be admissible, must have occurred in the plaintiff’s presence, during her employment.326 The Court of Appeal reversed, holding that evidence of sexual harassment toward nonparty female employees—outside the plaintiff’s presence and without her contemporaneous knowledge—should have been admitted, to show the defendant’s sexual bias.327 A 2018 Court of Appeal decision328 further illustrates California’s leniency about admitting evidence relating to sexual harassment. The jury rendered a verdict for the employer, but the Court of Appeal reversed and ordered a new trial on the ground that the trial court had erred on certain evidentiary issues. The Court of Appeal held that the plaintiff should have been permitted to testify about details of sexual electronic messages she had received from the alleged harasser even though she had since lost the messages, the trial court should have admitted “me too” testimony from four co-workers, all also allegedly harassed by the alleged harasser, who could present evidence going to his gender bias, and the trial court erred in admitting evidence that plaintiff had published on social media her abdominal tattoo, because that display was not “sexual conduct” with the alleged harasser and therefore was rendered inadmissible to show the plaintiff’s consent to allegedly unwelcome sexual conduct.329 “Me too” evidence does have limits, even in California, where courts have limited the extent of such evidence to facts showing discrimination sufficiently similar to what the plaintiff allegedly suffered. Thus, one plaintiff, who alleged Asian and Japanese ancestry, permissibly was denied the chance to show that his Arab employer discriminated against all non-Arabs. The plaintiff could present evidence that other employees of East Asian or Japanese descent had experienced similar discrimination, but not that the employer had discriminated against non-Arabs generally.330 Further, while “me too” evidence may be admitted to show intent or motive with respect to the plaintiff’s own protected class, it is “never admissible to prove an employer’s propensity to harass.”331 1 Gov’t Code §§ 12926(d), 12940(j)(4)(A). 2 42 U.S.C. §§ 2000e, 2000e(b); 29 U.S.C. § 630(b). 3 Gov’t Code § 12940(c) (unlawful to “discriminate against any person [on any of the protected bases] in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person”).
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