Since 2017, “me too” has become an increasingly familiar term (and hashtag), one used to spread awareness of sexual harassment and assault, problems that are alarmingly widespread. By some estimates, over eight in ten women have experienced sexual harassment at some point in their lives (e.g., Stop Street Harassment). The “me too” movement encourages victims of sexual harassment or assault to come forward about their experiences in order to show the public just how pervasive these issues are in society. Proponents of the movement want to start a discussion, and they have succeeded in doing so on a national and even international level to an extent not previously seen. Fortunately, the idea of “me too” evidence has long been a part of the discussion in employment law.
In law, “me too” evidence refers to evidence that other people have experienced similar behavior as the plaintiff. Both federal law and California law allow for certain kinds of “me too” evidence in employment litigation. Such evidence helps establish things like motive or intent. In California, “me too” evidence may be more likely to be admissible thanks to cases like Pantoja v. Anton. The plaintiff, Lorraine Pantoja, sued for race and sex discrimination, and sexual harassment. She reported that her supervisor touched her inappropriately, as well as said and requested inappropriate things. Pantoja wanted to include the testimony of women in similar positions who had experienced similar things working under the defendant. In that case, it was ultimately decided that the “me too” testimony was admissible even though Pantoja had not personally witnessed how the defendant harassed the other women. The court decided that the evidence was useful to show that the defendant had discriminatory intent. Of course, this is not the only example where “me too” evidence is helpful in employment law.
The following list will show a few ways in which “me too” evidence can be useful, particularly in cases concerning sexual harassment and discrimination.
1. When one offender harasses multiple people
“Me too” evidence can be used in cases involving one harasser repeatedly engaging in actions that can be classified as sexual harassment. Such evidence is useful in a lawsuit because it goes towards establishing that there is a pattern of illicit behavior by the same person. Take the following hypothetical scenario as an example:
Maria has worked for several years as a physical therapist at a hospital. Recently, she was transferred to a different department. She has found herself very uncomfortable around her new supervisor, Jerry, who occasionally touches her inappropriately and makes jokes that she feels are demeaning to women. Maria is not sure what to do at this point and contemplates quitting. She mentions to a coworker what she’s been experiencing and it is brought to her attention that several other women in the office feel the same and have experienced similar behaviors from their supervisor, Jerry. Maria tells Jerry to stop his inappropriate behavior. Two weeks later, she is fired for ambiguous reasons.
In this scenario, if Maria decided to file a lawsuit claiming sexual harassment and unlawful termination, the testimony from other women in her place of work could bolster her case. The “me too” evidence, in this case, would help to demonstrate that Maria indeed experienced harassment due to her sex. The testimony of other women in her workplace also helps because Maria did not get the chance to file a written complaint to human resources about Jerry. When it comes to potential lawsuits, when possible, getting things in writing is ideal. Of course, that is not always possible and in such cases, it is helpful to have “me too” evidence.
2. When the employer fails the employees
In the previous example, the potential plaintiff (Maria) and the other women in the office had qualms about the same person, their supervisor. However, that is not the only scenario in which “me too” evidence can be helpful.
In the workplace, employers have a responsibility to their employees that includes taking measures to prevent or stop sexual harassment. An example may best illustrate this idea:
Alex is an accountant at a large law firm. He dislikes his coworker David because David often tells him or shows him things that make him uncomfortable. For example, David often goes into detail about his dates and sexual activities with other people. Alex has asked David to stop, but David laughs it off, so Alex ultimately files a complaint with human resources. Unknown to Alex at the time, several other people who work at the company have filed complaints about a hostile work environment in the past few years, but nothing productive has been done to mitigate the threats. Alex is disappointed that, despite his complaint, nothing is done and David’s behavior does not change.
In this example, David could file a sexual harassment lawsuit against his company for failing to take action when notified of employees harassing their coworkers. More to the point, his lawsuit would have a greater chance of success because of the “me too” evidence, that is, the past written complaints of other employees. Even though the harasser varies in this case and is not necessarily an employer, the problem is that the company has failed to protect their employees from sexual harassment, so the “me too” evidence is still pertinent. Moreover, it does not matter that David did not know about the other complaints to human resources at the time; that is still evidence that can potentially be used to strengthen his case.
This example is reminiscent of the seminal California case of Weeks v. Baker & McKenzie (1998), wherein evidence that the employer was aware of an employee’s tendency to engage in harassing behaviors was ruled to be admissible. This evidence helped move the case to victory for the plaintiff, as it was deemed that the employer had not taken the proper steps to impede sexual harassment in the workplace.
3. When discriminatory intent is unclear
A third scenario in which “me too” evidence can be helpful is in cases of discrimination. In particular, such evidence can be very helpful in cases without clear evidence of the employer’s discriminatory intent, which is often difficult or impossible to gather. An example best illustrates this kind of case:
Viviane has worked as a salesperson at a car dealership for the past fifteen years. She has a good sales record and has only ever had a few write-ups for minor things. Most of her coworkers who have been there as long as she has have been promoted to more senior positions, which are more prestigious and include better pay. She does not understand why she has not been given the same opportunity and is bothered that there are so few women in leadership positions at his company, so she asks her boss about it. Unfortunately, her boss tells her they have no available senior positions. A few months after this, a male coworker who has worked at the dealership for five years is promoted to a senior position. Four women besides Vivian had been there longer than five years and had good sales records but had been passed up for the promotion.
In this example, the “me too” evidence is the four women other than Vivian who were in similar positions and had been denied promotions that were then given to less experienced male colleagues. This evidence helps show that what Viviane experienced was not idiosyncratic to her and was likely not because of Viviane as a person or worker but rather due to her gender. While no one at the company ever explicitly made any discriminatory remarks, these actions taken together help establish a pattern of events that can be most likely attributed to discriminatory intent.
Evidently, there are many ways in which “me too” evidence can be used to help bring people to justice. While such evidence is not admissible in every case, it is worth looking into if you have experienced similar situations to the ones described here. If you think you may have experienced sexual harassment or discrimination in your workplace, if it has resulted in loss of employment, a wrongful termination lawyer can help you decide what to do next.
