March 03, 2021 Top Story

"Me Too" Evidence Can Establish Discrimination Claim

Conflicting evidence in declarations is enough withstand summary judgment

By Kelso L. Anderson

A federal appellate court has ruled that conflicting “me too” evidence—other instances of discrimination or harassment against other employees by the alleged harasser or the same employer—may be sufficient to withstand a defendant’s dispositive motion by aiding a plaintiff in establishing his or her prima facie showing of discrimination. While ABA Litigation Section leaders agree that “me too” evidence is relevant in discrimination cases generally, they also believe such evidence has significant admissibility limitations that must be considered by litigants and courts.

The plaintiff claimed age discrimination as a reason for his firing

The plaintiff claimed age discrimination as a reason for his firing

iStockphoto by Getty Images

Allegations of Discrimination

In Pineda v. Abbott Laboratories, Inc., the plaintiff sued his former employer in the U.S. District Court for Central District of California, alleging age and disability discrimination following a traumatic brain injury. The undisputed facts established at trial revealed that the defendant provided the plaintiff with 11 of his 12 requested accommodations. The twelfth request, a four-hour workday for six weeks, was in fact provided for two weeks before the plaintiff’s doctor cleared him to return to work full time.

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