The “Not Me Too” Evidence Doctrine in Employment Law: Courts’ Disparate Treatment of “Me Too” Versus “Not Me Too” Evidence in Employment Discrimination Cases
Employment discrimination claims can present challenging problems of proof. Indeed, it is a rare occurrence when a plaintiff can produce direct evidence of an employer’s intent to discriminate. As a result, a plaintiff must rely on circumstantial evidence to show that an employer’s proffered reason for an adverse employment action was either false or pretextual. Often, such circumstantial evidence is presented in the form of “me too” evidence. So-called “me too” evidence allows the plaintiff to present testimony of other employees to demonstrate that an employer discriminated against similarly situated individuals. “Me too” evidence has proven to be a powerful tactic for plaintiffs and, consequently, a serious threat to employers.