When an employer is sued for employment discrimination and is facing trial, a common issue is whether the employee will be permitted to introduce evidence at trial of other instances of discrimination or harassment against co-employees (i.e., “me too” evidence). The threat of such evidence being admitted requires careful attention during the discovery phase and the use of pretrial motions to attempt to exclude such evidence wherever possible. The very threat of such claims coming into evidence and uncertainty over what will come into evidence can even stand in the way of resolving the case before trial.
The issue of admissibility will turn on the nature of the employee’s claims as compared to those of the potential witnesses. Use of the evidence will likely require that such evidence be sanitized, and accompanied by a limiting instruction, so as not to unduly prejudice the employer.