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Strength In Numbers: How To Use Evidence Of Discrimination Against Other Employees

In glass ceiling, promotion discrimination, and harassment cases, an important source of information is often the way in which the company has treated other employees.

For example, in a race discrimination glass ceiling/promotion discrimination case, if the company has rejected a dozen qualified, African-American candidates for the same high-level position while promoting less qualified white employees, this conduct arguably sheds light on the company’s mindset in making these decisions.

Or in a sex harassment case, if your supervisor has also harassed other female employees, this is evidence you want the jury to hear.

Why is this important evidence?

In some cases, the employer may be blatant enough in their discrimination that they make explicit statements:  “We didn’t promote you because you’re a woman and we didn’t think you could handle the job.”  This is known as “direct evidence” of discrimination and it is relatively rare for an employer to be this transparent in its motives.

More often, employees must rely on circumstantial evidence of discrimination and one valuable kind of circumstantial evidence is how the company treats its other employees.

But is it admissible evidence?

In an individual lawsuit (as compared to class action lawsuit), the Supreme Court has noted, “other employee evidence is neither per se admissible nor per se inadmissible.”  Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 381 (2008).

But generally the way other employees have been treated by the company “is relevant to the issue of the [company’s] discriminatory intent.” Calobrisi v. Booz Allen Hamilton, Inc., 660 Fed.Appx. 207, 210 (4th Cir. 2016).

These kinds of evidentiary questions are very similar to figuring out whether other employees should be considered “similarly situated employees” in pay, harassment, and other kinds of employment discrimination claims.

And remember, to be considered “similarly situated,” the other employees need not be identical.

Some of the factors courts look at to decide if other employee evidence should be heard by the jury are:

  • is the other discriminatory behavior close in time to the events in your case?

  • are the same decision makers (for example, managers/supervisors) involved?

  • were you and the other employee treated in the same manner?

Ultimately, a court should look at each piece of other employee evidence individually to see if it is relevant and admissible at trial.

What about other employees who were treated better than me?

If the way in which your company treats other employees of your same race, gender, etc. is relevant, then shouldn’t the company’s treatment of employees who are of a different race, gender, etc. also be relevant?  Courts in the Fourth Circuit have answered “yes.”

“After all, ‘the very term ‘discrimination’ invokes the notion of treating two person differently on the basis of a certain characteristic that only one possesses.'”  Emami v. Bolden, 241 F.Supp.3d 673, 688 (E.D. Va. 2017).

Key takeaways

To determine if you can use evidence about how your company treats other employees, consider:

  • are these employees of the same protected class (race, gender, etc.) as you?

  • does the way the company treated these employees help corroborate your claim and/or show a pattern of discrimination?

  • how similar are these employees to you:  do they do the same job, have the same supervisor, and were they treated in the same way?

  • did the discrimination the other employee suffered happen relatively closed in time to your discrimination?

© 2021 Zuckerman LawNational Law Review, Volume VII, Number 278

About this Author

Eric Bachman, Discrimination Attorney, Zuckerman Law Firm
Of Counsel

Eric Bachman is Chair of the Discrimination and Retaliation practices at Zuckerman Law and has served in senior positions at the U.S. Office of Special Counsel (OSC) and the Department of Justice Civil Rights Division.  Bachman’s wins include a $100 million settlement in a disparate impact Title VII class action, a record-setting Whistleblower Protection Act settlement at OSC, and a $16 million class action settlement against a major grocery chain.  Bachman holds extensive litigation experience, including trials in federal and state courts, and has also set important...

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