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Victims of employment harassment/discrimination are not alone in proving their case.

Posted by attorney Angelo Campano

“Me too" evidence is a type of evidence used in employment cases. Typically, a victim of harassment/discrimination may come to learn that others have also been the victim of harassment/discrimination and will want to use that evidence to help them prove their case. That is where the phrase “me too" evidence comes into play. SeeJohnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties(2009) 173 Cal. App. 4th 740.Having others who experienced harassment/discrimination at the same place of work can be very helpful to your case because as they say, “where there is smoke, there is fire." But, like any evidence, there is always a question of whether it will be admitted into the court by the judge.

Defense lawyers, representing employers, do not like me too evidence, and they will do as much as possible to keep it out. Defense lawyers take the position that the victim of harassment/discrimination had to know that others were also experiencing harassment/discrimination at the time it was going on in order for me too evidence to be admitted into court. SeeFisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.

If a judge or jury hears that others at work experienced the same harassment/discrimination that you did, then that me too evidence will likely convince the judge/jury that you are not making up or exaggerating your claim. And, when it comes time for the judge/jury to decide if you are right or wrong, having another person also experiencing the same problems can make that crucial difference in your case.

Generally, in order to have me too evidence admitted into evidence (allow the judge/jury to see/hear it), the victim needs to show that the victim knew that this other victim was or had experienced the same harassment/discrimination that you experienced. Sounds simple, but like many employment cases, victims do not always complain or voice their concerns out of fear of retaliation, losing their jobs in an already weak economy or just plain humiliation. Therefore, a lot of times, a victim of harassment/discrimination may never know of the other victims until well into after a lawsuit was filed, if at all. By then, courts may not admit that me too evidence because you did not know of the other victim while you yourself were going through the harassment/discrimination. Luckily, for employees, that no longer has to be the case.

In Pantoja v. Anton(August, 2011) 198 Cal.App.4th 87, the California Appellate Court ruled that a victim seeking to admit me too evidence did not need to know of the other victim’s harassment/discrimination in order to have me too evidence admitted into court. Instead, the Appellate Court ruled that a victim of harassment/discrimination can use recently discovered me too evidence to (1) impeach the defendant who denies ever committing harassment/discrimination before or (2) to show intent of the defendant to harass/discriminate against others in the same way.

Based on a reading of this ruling, the Appellate Court has provided victims of harassment more opportunities to prove they were a victim of harassment/discrimination. It no longer has to be a “he said, she said" type case. This ruling undoubtedly expands the rights of victims of harassment/discrimination in proving they were the unfortunate victims of harassment/discrimination.

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