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‘Me-too’ evidence doesn’t prove specific bias

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in Discrimination and Harassment,Human Resources

Here’s some good news for em­­ployers: Employees can’t use “me-too” evidence pointing to widespread discrimination against many classes of employees if their initial claim only alleges discrimination against a specific subgroup.

Recent case: Ken is of Japanese ancestry and a member of the Asian race. He sued his employer—the California Department of Trans­­por­­ta­­tion—and his supervisor, alleging anti-Japanese and anti-Asian discrimination. The crux of his argument was that his boss, who is of Arab ancestry, criticized his work because of prejudice.

At trial, Ken tried to introduce evidence that showed the supervisor always favored his fellow Arabs. He had witnesses lined up to testify that the supervisor discriminated against them because they were not Arabs. None of those witnesses, however, were Japanese or Asian, but be­­longed to other protected classes.

The trial court refused to allow the testimony, and a jury ruled for the Department of Transportation.

Ken appealed, arguing his witnesses could have offered so-called me-too evidence that he should have been able to use to prove he had suffered discrimination.

The appeals court refused to reinstate the case. It reasoned that if the witnesses were Japanese or Asian, their testimony would have been relevant. They weren’t. Discrimination against a different group isn’t proof of discrimination against Japanese people or Asians. (Hatai v. Department of Transportation, No. B236757, Court of Appeal of California, 2nd Appellate District, 2013)

Final note: The genesis of this lawsuit was an overheard comment from the supervisor in Arabic that Arabs had to stick together. Ken took that as proof that he had been discriminated against because of his race or ancestry. But the court noted that Ken never raised that claim. If he wanted to claim that the supervisor favored Arabs, he should have said so up front.

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