Articles Posted in Age Discrimination

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Employment discrimination claims often hinge on the admissibility of evidence. A plaintiff bringing an employment discrimination claim may, for example, offer into evidence testimony from other employees who also believe they were victims of discrimination. Such evidence is referred to as “me too” or propensity evidence and has been a subject of debate among litigants. Be it discrimination based on age, gender, or another protected class, propensity evidence can be powerful if admissible.

As background, Federal Rule of Evidence 404(b)(2), which is virtually identical to the Massachusetts corollary, provides that evidence of a crime, wrong, or other act “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Because motive, intent, and state of mind are directly at issue in employment discrimination claims, “me too” or propensity evidence may be properly admitted under these rules under certain circumstances. Other relevant portions of the Rules of Evidence with respect to “me too” or propensity evidence include FRE 401 (Test for Relevant Evidence) and FRE 403 (Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons).

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Is proving employment discrimination more difficult under the federal rules of evidence? An article by the New York Times entitled Chief Justice’s Report Praises Limits on Litigants’ Access to Information suggests so. Let’s take a closer look. In doing so, it’s important to note that employees who bring whistleblower claims, unpaid wages actions (including overtime and commission claims), and who are retaliated against for using medical leave likely face hurdles.

As discussed in the 2015 Year-End Report on the Federal Judiciary by Justice Roberts, the amended Federal Rule of Civil Procedure (FRCP) 26(b)(1) now requires discovery requests to be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” In contrast, Massachusetts Rule of Civil Procedure (MRCP) 26(b)(1) currently imposes no such requirement.

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