This CLE course will guide employment litigators on pursuing or challenging the admission of propensity evidence in discrimination, retaliation, or harassment cases. Our panel of experienced employment litigators will discuss the factors courts take into account when ruling on the admissibility of propensity evidence and share their perspectives and approaches to drafting pleadings, conducting discovery, arguing motions, and trying cases in which propensity evidence is critical to the outcome of the case.
Employees in discrimination, retaliation, and harassment litigation often seek to use propensity or "me too" evidence to prove their cases, and employers may wish to keep such evidence out, or use evidence of the plaintiff's prior history against them. All these tactics present tricky evidentiary issues.
The admissibility of propensity evidence is subject to analysis under Federal Rules of Evidence 401, 403, and 404. The trial court has broad discretion in deciding whether to admit or exclude evidence, taking into account several factors related to the relevance of the evidence, the burden on the opposing party of responding to these allegations, and potential for juror confusion.
Employment counsel intending to introduce propensity evidence must develop their trial strategy with this intention in mind, from the drafting of the initial or responsive pleading through their closing argument. Counsel seeking to exclude propensity evidence should strategically use discovery, motions in limine, and trial objections to block its admission.
Listen as our authoritative panel of employment litigators discusses best practices for dealing with propensity evidence in employment discrimination, retaliation, and harassment lawsuits.
