U.S. Supreme Court

Case Status


Docket Number



2007 Term

Oral Argument Date

December 03, 2007


Questions Presented

Whether a district court must admit “me, too” evidence - testimony, by nonparties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff.

The Tenth Circuit panel majority held that a court commits reversible error by excluding “me, too” evidence. This decision conflicts with those of other circuits. Specifically, four circuits have held “me, too” evidence wholly irrelevant. Five circuits have held that “me, too” evidence may be excluded under Federal Rule of Evidence 403.

Case Updates

Supreme Court rules on admission of non-party evidence in age discrimination case

February 26, 2008

The Supreme Court overturned the Tenth Circuit ruling on how courts are to treat “me too” evidence — workplace discrimination testimony by workers other than the one raising a job bias claim. The high court held that the Tenth Circuit erroneously assessed the relevance of testimony of nonparty employees who alleged age discrimination in an individual disparate treatment case, and conducted its own balancing of probative value and potential prejudicial effect of such evidence, instead of allowing the district court to make that determination.

U.S. Chamber files amicus brief

August 20, 2007

NCLC urged the Supreme Court to reverse a Tenth Circuit decision and to hold that the testimony of non-party employees who alleged age discrimination is inadmissible in disparate treatment cases. Pointing out the distinction between disparate treatment and disparate impact cases, NCLC argued claims of discrimination by employees other than the plaintiff are always irrelevant and unfairly prejudicial in disparate treatment cases. If upheld, the Tenth Circuit’s overbroad rule dramatically expands the scope of liability, and the costs and potential unfairness of employment discrimination litigation.

Case Documents