Numerous federal and state courts have held that pattern and practice evidence is admissible for the purpose of proving pretext and discriminatory intent. See Hume v. American Disposal Co., 124 Wn.2d 656, 666, 880 P.2d 988 (1994) ("the trial court correctly found that the testimony of the former employees regarding their experiences with the defendants was relevant to the issue of the defendants' intent, plan, and pattern regarding the alleged harassment"); Burnside v. Simpson Paper Co., 123 Wn.2d 93, 107, 864 P.2d 937 (1994)("evidence of two former Simpson employees was admitted to show [Defendant] had terminated others under similar circumstances as Burnside was alleging").
Self evidently, if such evidence is admissible it is also discoverable. Plaintiff acknowledges that not all pattern and practice evidence is automatically admissible, and that a ruling on admissibility may require a proffer of evidence to determine whether the facts of the proffered evidence satisfy the Court that the probative value justifies admission. But in order to be able to make the necessary proffer, Plaintiff must be able to discover the evidence. Blanket exclusions of evidence in wrongful discharge cases are not favored in the law.
In Heyne v. Caruso, 69 F.3d 1475 (9th Cir. 1995), the Court considered a sexual harassment case decided under Title VII of the Civil Rights Act of 1964. The district court granted the defendant's motion in limine and excluded testimony regarding the defendant's alleged harassment of other female employees. Id. at 1477. The Ninth Circuit reversed:
"We find that the district court erred by excluding evidence of Caruso's harassment of other female employees. The district court's evidentiary ruling excluding such testimony significantly hampered Heyne in her efforts to challenge Caruso's asserted motive. See Mullen, 853 F.2d at 1133; see also Estes, 856 F.2d at 1103 (stating that the trial court's exclusion of the employer's general treatment of Blacks was especially damaging in a race discrimination claim "in which plaintiffs must face the difficult task of persuading the fact-finder to disbelieve an employer's account of its own motives."). Heyne should have been permitted to introduce evidence of Caruso's sexual harassment of other employees in order to rebut Caruso's proffered reason for terminating her."
Id. at 1481 (emphasis added). The Court in Heyne explicitly ruled that the probative value of the testimony outweighs any unfair prejudice that may have existed, and that the exclusion of this evidence was an abuse of discretion. Id. at 1480-1481 .
Blanket exclusions of pattern and practice evidence are particularly abhorrent. In Estes v. Dick Smith Ford, 856 F.2d 1097, 1103 (8th Cir. 1988), the court excluded in limine a great deal of evidence which tended to show a climate of race and age bias against the defendant. In particular, that the defendant had fired two other employees because of their ages, and that members of the defendant's management referred to blacks as "niggers." Id. at 1102. In overruling the trial court, the Eight Circuit ruled as follows:
Id. at 1103 (Emphasis added). See also Glass v. Philadelphia Electric Corp., 34 F.3d 188, 195 (3rd Cir. 1994) ("Our decision is buttressed by the judicial inhospitability to blanket evidentiary exclusion in discrimination cases.") (citing Estes). Numerous other federal courts have ruled that this evidence is admissible. E.g., Hunter v. Allis-Chalmers, Corp., Engine Div., 797 F.2d 1417, 1423 (7th Cir. 1986) ("Given the difficulty of proving employment discrimination - the employer will deny it and almost every worker has some deficiency on which the employer can plausibly blame the worker's troubles - a flat rule that evidence of other discriminatory acts by or attributable to the employer can never be admitted without violating Rule 403 would be unjustified"); Harpring v. Continental Oil Co., 628 F.2d 406, 409 (5th Cir. 1980)("Testimony of similarly situated employees and the reasons for their discharge are relevant and admissible in proving a pattern and practice of age discrimination."); Phillip v. ANR Freight Systems, Inc. 945 F.2d 1054, 1056 (8th Cir. 1991) cert. denied 113 S.Ct. 81 (1992) (Exclusion of evidence concerning other discrimination cases filed against ANR was reversible error); Ratliff v. Governor's Highway Safety Program, 791 F.2d 394, 402 (5th Cir. 1986)("An employer's past discriminatory policy and practice may well illustrate that the employer's asserted reasons for disparate treatment are a pretext for intentional discrimination."); Southern Bell Tel. & Tel. Co. , 863 F.2d 1503, 1511 (11th Cir. 1989) (acts directed at others can be evidence of discrimination against the plaintiff); Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990) (holding that testimony by other employees about the defendant's mistreatment of them based on age was relevant to the issue of discriminatory intent in a Title VII age discrimination case); E.E.O.C. v. Recruit U.S.A. , 939 F.2d 746, 755 (9th Cir. 1991)("Evidence of past business practices may reveal that the unlawful conduct was part of a larger pattern of discrimination", and citing additional cases).
The effects of blanket evidentiary exclusions can be especially damaging in employment discrimination cases, in which plaintiffs must face the difficult task of persuading the fact-finder to disbelieve an employer's account of its own motives.
A plaintiff's ability to prove discrimination indirectly, circumstantially, must not be crippled by evidentiary rulings that keep out probative evidence because of crabbed notions of relevance or excessive mistrust of juries.
Circumstantial proof of discrimination typically includes unflattering testimony about the employer's history and work practices - evidence which in other kinds of cases may well unfairly prejudice the jury against the defendant. In discrimination cases, however, such background evidence may be critical for the jury's assessment of whether a given employer was more likely than not to have acted from an unlawful motive