Propensity Evidence in Employment Discrimination Claims: FRE 401, 403, 404; Admission and Exclusion Strategies
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Employment and Workers Comp
- event Date
Wednesday, April 16, 2025
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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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.
Mr. Carr has extensive experience conducting internal investigations and representing companies in labor and employment disputes before administrative agencies and in federal court. He secured a jury and bench verdict in favor of a major U.S. city in a federal court case alleging race and political affiliation discrimination. In one of the first district court cases addressing the “ministerial exception” after the Supreme Court’s 2020 ruling in Our Lady of Guadalupe v. Morrissey-Berru, Mr. Carr successfully won summary judgment in the employer’s favor on a terminated employee’s claim of pregnancy discrimination. He also has experience defending employers against wage-and-hour claims, including securing summary judgment and a circuit court affirmance in an employer’s favor in a case alleging misclassification and unpaid overtime under the FLSA.
Since 2002 Mr. Jackson has devoted his career to representing employees whose rights have been violated in the workplace. He handles nearly all aspects of litigation arising from the employment relationship, representing employees with a wide variety of legal claims arising from the workplace. Mr. Jackson has particular experience representing salespersons and management level employees who have been the victims of wage and hour violations perpetrated by automobile dealerships, which is all too common and often goes unpunished.
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.
- Applicability of Federal Rules of Evidence 401, 403, and 404 to propensity evidence
- Factors courts consider in determining the admissibility of propensity evidence
- Strategies for pursuing admissibility of propensity evidence
- Strategies for pursuing exclusion of propensity evidence
The panel will review these and other key issues:
- What factors do trial courts consider when determining whether to admit or exclude propensity evidence?
- What are some considerations and best practices for counsel pursuing the admissibility of propensity evidence?
- What are some considerations and best practices for counsel opposing the admissibility of propensity evidence?
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