Best Ohio Race Discrimination Attorney Answer: What is “me too” evidence? Can I use evidence of discrimination against someone else to prove my hostile work environment claim? What should I do if I work in a hostile work environment? What is the best way to find a top wrongful termination lawyer in Ohio?
A hostile work environment is one in which there is harassment or discrimination (because of race, gender, national origin, religion, age, or disability) that is so severe and pervasive that it alters the terms and conditions of one’s employment, and creates an abusive working environment. To prove that discrimination and harassment is “severe and pervasive,” an employee must show that the work environment is both subjectively hostile (hostile to the employee personally) and objectively hostile (a reasonable person would find the environment hostile). Critically, courts generally review the objective requirement from the perspective of a reasonable person in the employee’s shoes, who knew what the employee knew at the time.
Because of these requirements, proving a hostile work environment claim generally requires firsthand knowledge of discrimination and harassment. Often times, the question of whether an employee can enter “me too” evidence comes up, in which the employee tries to enter evidence of harassment and discrimination against his or her co-workers. Whether the court will allow such evidence involves a case-by-case analysis, in which the court will determine if the evidence is relevant or otherwise admissible under the rules of evidence. As a result, an employee should not rely on being able to admit such evidence to prove their hostile work environment claim.
Recently, in Adams v. Austal, U.S.A., L.L.C., the Eleventh Circuit Court of Appeals, addressed this issue. Its holding is a good overview of whether, under what circumstances, and at what point in a trial that this evidence may or may not be admissible, and for what purposes it would be admissible:
Neither our Circuit nor the Supreme Court has clearly defined the outer bounds of admitting “me too” evidence to prove that an employer should be held liable for a hostile work environment. We have allowed, as relevant and not overly prejudicial, the admission of evidence of racial slurs that an employee did not hear and epithets not directed at the employee, Busby v. City of Orlando, 931 F.2d 764, 785 (11th Cir. 1991), but we have not held that “me too” evidence about slurs of which the employee was unaware can prove that the employee viewed his work environment as hostile, cf. Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1522 (11th Cir. 1995) (“[S]ome of the incidents relied upon were not made known to Edwards until after her termination and, therefore, could not have contributed to her subjective view of a hostile work environment.” (emphasis added)). In Bagby Elevator Co., we affirmed the admission of “me too” evidence under Federal Rule of Evidence 402, to support a claim of a hostile work environment because the evidence proved that the employer, a small business, permitted the hostile environment to exist and the evidence was relevant to issues raised either on cross-examination or as an affirmative defense. 513 F.3d at 1286. But we did not address whether the plaintiff was aware of the “me too” evidence.
Even when “me too” evidence is relevant under Rule 401, the district court retains the discretion to exclude that evidence, under Rule 403, if it is unduly prejudicial, confusing, misleading, or cumulative. In Sprint/United Management Co. v. Mendelsohn, the Supreme Court explained that the admissibility of evidence of discrimination by other supervisors is not governed by a categorical rule, but is a “fact-intensive, context-specific inquiry.” 552 U.S. 379, 388, 128 S. Ct. 1140, 1147, 170 L. Ed. 2d 1 (2008). For example, unlike the small company in Bagby Elevator, Austal employs over 2,000 workers across many departments and in different locations. The response in one department or from one supervisor might vary greatly from another department or supervisor, and the decision to admit “me too” evidence rests within the sound discretion of the district court under Rules 401 and 403.
The district court did not abuse its discretion when it excluded the “me too” evidence proffered by Hedgeman and Carter during their case in chief. During trial, the district court admitted evidence of racial harassment by any supervisor of the employee plaintiffs. The district court did not abuse its discretion by excluding evidence about incidents of harassment of which Hedgeman and Carter were unaware and that were unrelated to their supervisors. And Hedgeman and Carter have failed to explain the substantial prejudice they suffered by the exclusion of that evidence.
Although “me too” evidence of which a plaintiff is unaware is admissible in rebuttal to prove the ineffectiveness of an antiharassment policy, see Bagby Elevator, 513 F.3d at 1286-87, Hedgeman and Carter failed to proffer any “me too” evidence in rebuttal. Indeed, they offered no rebuttal evidence. The district court could not have abused its discretion by excluding evidence that Hedgeman and Carter never proffered.
So, what should you do then if you are working in a hostile work environment? Complain about it! Surprisingly, this seems counterintuitive to many people, who are afraid that if they “rock the boat,” things will get worse, or that they might be fired for it. But this is not actually a bad thing. Ohio law (R.C. § 4112.99) and federal law (Title VII of the Civil Rights Act of 1964) make it unlawful to retaliate against someone for complaining about unlawful discrimination and harassment, even if the complaints turn out to be unmerited. So, as it turns out, you have nothing to lose for complaining about a hostile work environment.
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