‘Me, Too’ Evidence in Sexual-Harassment Suit Is Allowed


By Joanne Deschenaux July 23, 2018

A California appellate court reversed a jury verdict in favor of a manager because the trial court refused to admit "me, too" evidence in an employee's sexual-harassment lawsuit against a co-worker.

The evidence—that the defendant had acted inappropriately toward several female workers other than the plaintiff—was relevant, and the jury should have been allowed to consider it, the California Court of Appeal ruled.

The plaintiff was employed as a store manager at an AutoZone store. The defendant was a store manager at a second store. Although the two never worked at the same store, they had regular contact.

According to the plaintiff, the defendant regularly subjected her to sexual harassment by commenting on her body and clothes, asking her to go out with him, and suggesting that they have sex. The plaintiff alleged that he would send her text messages with sexual content, forcibly attempted to kiss her and suggested that he could facilitate her advancement within AutoZone because he was one of the favorites of the district manager. He also told her that he would get her fired if she reported his conduct.

[SHRM members-only HR Q&A: What are the different types of sexual harassment?]

The plaintiff reported this behavior to the district manager who supervised both employees. The district manager told the plaintiff that she had spoken to the defendant, who had "laughed it off," calling it a misunderstanding and a joke. No further action was taken at that time. Ten months later, AutoZone fired the defendant for violating company policy by sending a text message with sexual content to another AutoZone employee.

The plaintiff sued the defendant for hostile-work-environment sexual harassment and AutoZone for sexual harassment and failure to prevent harassment, among other claims. A jury ruled for both defendants, and the plaintiff appealed.

'Me, Too' Evidence

At trial, the plaintiff had tried to present testimony from four other female AutoZone employees who had allegedly experienced harassment by the defendant. The court did not allow the employees to testify, ruling that because the alleged behavior had not taken place when the plaintiff was present, it could not be relevant to her claim against the former manager.

The appellate court ruled that the trial court's refusal to admit the evidence constituted reversible error and sent the claim against the former manager back to the lower court for a new trial.

The court first noted that California courts have held that "me, too" evidence—evidence of gender bias or harassment against employees other than the plaintiff—may be admissible evidence. The relevance of this evidence depends on many factors, the court said, noting that it might be admissible to prove a defendant's motive or intent even where the conduct occurred outside the plaintiff's presence and at times other than when the plaintiff was employed.

In this case, the defendant specifically disputed that his behavior was motivated by discrimination because of sex, repeatedly insisting that he treated male and female employees similarly. The plaintiff was entitled to prove otherwise, including through "me, too" evidence, the court ruled.

Meeks v. AutoZone Inc., Calif. Ct. App., No. E061775 (June 21, 2018).

Professional Pointer: In addition to being relevant to the plaintiff's claim against the former manager, the "me, too" evidence in this case was relevant to the claims brought against AutoZone, making it more likely that the company knew about the harassment and failed to do enough to stop it.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 


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