The Missouri Supreme Court has just issued a major ruling on whether “me too” evidence is admissible in an employment discrimination lawsuit brought pursuant to the Missouri Human Rights Act.
The case involves an age discrimination claim brought by a former employee against the Kansas City Chiefs Football Club. In his petition, the plaintiff alleged a single act of discrimination, i.e., that he was discharged as part of a company-wide policy of terminating or forcing out older employees to make room for younger replacements.
At trial, the plaintiff attempted to introduce evidence of firing of other older employees, often with younger people replacing them, as circumstantial evidence of the Chiefs’ discriminatory intent in terminating his own employment. This is known as “me too” evidence, which focuses on other behavior toward or comments directed at other employees in the age protected group as one type of circumstantial evidence that can support an inference of discrimination.
The trial court issued a ruling excluding evidence of 17 other former Chiefs’ employees on grounds that they were not “similarly situated” to the plaintiff and because the plaintiff had not alleged a “pattern and practice claim” against the Chiefs. The trial court also excluded such evidence on grounds that there was not a “common decision-maker” for all of the former employees of the football team.
On appeal, the Missouri Supreme Court held that the trial court committed legal error in its blanket exclusion of such “me too” evidence. Instead, the trial court should have engaged in an individualized determination of whether employees, other than the plaintiff, were similar by examining factors of “whether it’s the same place, the same time, the same decision-makers.”
Since the plaintiff alleged a top-down effort to replace older employees throughout the organization, any distinctions involved in the “me too” evidence are less relevant than the similarities alleged, according to the Missouri Supreme Court.
Thus, the Court vacated the verdict in favor of the Chiefs and remanded the case back to the circuit court for a new trial.