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Attorneys

LAW ALERT: An Employee’s “Me Too” Evidence Can Prove Discrimination

July 7, 2009

Download: An Employee’s “Me Too” Evidence.pdf

In Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties, a California Court of Appeal has held that an employee can prove a case of discrimination by putting on evidence from other employees that claim that they too were subject to discrimination by the employer (“me too” evidence).

In Johnson, Plaintiff claimed she was terminated after taking sick leave related to her pregnancy. The employer filed a summary judgment motion claiming that Plaintiff was terminated because she falsified her timesheets when she said she had worked at home when she had not. The Plaintiff submitted various pieces of evidence in opposition to the summary judgment motion to try and prove that the employer’s stated reason for termination was pretext, including declarations from other employees who believed that they had been subjected to discrimination by the employer but had never taken any action against the employer for such alleged discrimination.

One employee said in her declaration that when she attended a meeting with managers involved in Plaintiff’s case, they discussed their desire to fire a pregnant employee because “they were worried about being liable in case she was injured, but they could not do that because it was illegal.” According to the declaring employee, the managers then discussed what reasons they could use to fire the employee. Another employee declared that one of the managers fired her and told her it was because she was pregnant; and yet another declared that she was terminated without any reason within weeks after revealing she was pregnant.

The trial court held that the declarations were inadmissible and ruled in favor of the employer on the summary judgment. Plaintiff appealed and the Court of Appeal held that the “me too” evidence in the declarations was per se admissible and was substantial evidence that the employer’s stated reason for terminating Plaintiff was pretext for discrimination. The court said that this evidence of the managers’ prior treatment of pregnant women showed intent or discriminatory animus.

Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s law blog at www.thelelawblog.com.