Before “#MeToo” became a movement, it was a well-known, damaging type of evidence to employers litigating discrimination claims. “Me too” in the employment litigation context refers to evidence that employees other than the plaintiff also were also discriminated against. Employers had traditionally sought, with mixed results, to exclude such evidence as improper character evidence under FRE 404(b) or as substantially more prejudicial than probative under FRE 403. Debate raged over admissibility. In 2008, the U.S. Supreme Court tackled the issue and held that “me too” evidence is not per se admissible or inadmissible. See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008). Rather, the Court found, admissibility depends on a fact-intensive inquiry.
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