In order to reach a jury trial, plaintiffs in employment discrimination claims generally must provide evidence of intentional treatment that led to some adverse employment consequences. In some cases, plaintiffs attempt to meet this burden by introducing pattern and practice, or “me too” evidence. This evidence consists of testimony by other similarly situated employees in the company who also allege that they were subjected to discriminatory treatment based on the same protected classifications. Last month, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) in an unpublished decision, concluded that trial courts cannot summarily dismiss the relevance of me too evidence offered by the plaintiff.

In Calobrisi v. Booz Allen Hamilton, Inc., the plaintiff alleged that she was demoted due to her age and gender. As evidence of her claims, she offered testimony from seven other older female employees in the company who claimed that they had been adversely treated as well. The trial court granted summary judgment for the employer, summarily concluding that the testimony involving unrelated matters going back a number of years was inadmissible.

The Fourth Circuit reversed this dismissal, remanding the matter for further proceedings. The court cited U.S. Supreme Court precedent that allows the use of “me too” testimony to satisfy the plaintiff’s burden of proving employment discrimination. The Fourth Circuit agreed that some of this testimony may be considered too remote or tangentially related to the plaintiff’s situation to be deemed admissible. However, this determination requires an individual analysis of each of the offered employees’ testimony, and cannot be dismissed in a summary manner.

For employers, this decision means that in some cases, plaintiffs unable to produce evidence of intentional discrimination affecting their own employment, can still avoid summary judgment if they can produce reliable proof of similarly situated employees exposed to the same alleged conduct. Employers making decisions with regard to employees in categories protected under federal civil rights law should analyze the impacts of individual decisions on employees in those classifications over time.