When an employee suffers discrimination or harassment in the workplace, there are state and federal laws that allow the employee to file a lawsuit to recover damages, such as lost wages, emotional distress, attorneys’ fees and, if the conduct is particularly bad, punitive damages against the employer and sometimes the person who harassed the employee in the workplace.  The employee has the initial burden of showing that he or she falls into a protected category, such as sex, disability, national origin, or other categories protected under federal and state laws.  Then, the burden shifts to the employer to prove that the employment action that the employee suffered was because of a legitimate business reason.

One of the ways that employees try to show that they were unlawfully discriminated against and harassed is to provide testimony from other employees who suffered similar harassment or discrimination.  This is often referred to as “me to” evidence, and it can be powerful if there is a pattern of conduct that was directed at a number of employees who fall into the same protected category.

Recently, in the California Court of Appeals decision of Pantoja v. Anton, 198 Cal.App.4th 87 (2011), an employee sued her former employer alleging that he inappropriately touched her and referred to her in derogatory ethnic and gender terms before firing her.  The court found that “me-too” evidence could be relevant to prove the employer’s discriminatory intent or bias that motivated her firing and created a hostile working environment.  The court also noted that testimony of the employer’s conduct towards other employees might show that he engaged in a pattern of harassment and race discrimination against other employees on the same basis.

One can expect to see more use of “me too” evidence of other employees claiming the same type of harassment or discrimination in the workplace in wrongful termination lawsuits.

For further information, please contact:  Nicholas P. Connon, Managing Partner; Tel:  +1.626.638.1757; e-mail: nconnon@connonwood.com