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Court expands scope of ‘me too’ evidence

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in Discrimination and Harassment,Human Resources

Employees who sue for retaliation sometimes try to bolster their cases by claiming others who complained also experienced retaliation.

Until recently, courts hearing California cases had limited so-called “me too” evidence to very similar cases. For example, someone who claimed retaliation for reporting sexual harassment could only use other sexual harassment complaints to bolster his case. That’s no longer a limitation.

Recent case: John worked as a VP of finance at a Doubletree Hotel. When one of his subordinates told him that someone in HR was sexually harassing her, John reported it to his boss and later to the HR director.

Meanwhile, the subordinate was fired allegedly for taking long breaks. John again protested, claiming that he feared litigation against the company. He said the woman should be rehired.

Shortly after, John—who had never received a negative performance review and had several times won awards for good work—was also terminated. He was accused of falsifying time records for workers who took longer-than-authorized breaks.

John sued and sought records for any other employees who had complained about any form of discrimination. He wanted to use the potential “me too” evidence to bolster his claim that the company fired complainers.

The hotel argued that only sexual harassment complaints counted.

The court disagreed. It said the employer had to provide information about any other employees disciplined or fired by the same group of supervisors involved in John’s discharge, regardless of what type of discrimination they had originally reported. (Goold v. Hilton, No. 1:13-cv-00438, ED CA, 2014)

Reminder: You should monitor any disciplinary action against employees who lodge complaints. Make sure the proposed discipline doesn’t appear to be retaliatory.

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