Supreme Court Says Plaintiffs in Discrimination Cases
May Present Evidence of Biased Treatment Against Others

by Ted Olsen

Plaintiffs often try to bolster their employment discrimination claims with evidence from other employees, who also say they have experienced discrimination (hence, the term "me, too" evidence). They argue such evidence helps to show an employer's pattern of discriminatory conduct. 

On the other hand, such "me, too" evidence is often irrelevant to the question before the judge and jury—proof of bias on the part of a supervisor who was not even involved in the decision to take adverse action with the plaintiff, for instance, shows nothing about whether the plaintiff was discriminated against—and can be unfairly prejudicial to the employer. A case grows dramatically when "me, too" evidence is presented. Such evidence forces an employer to defend, not only its actions taken with the plaintiff, but with many other individuals. This increases the cost of defense, and also raises the risk that the jury will find an employer discriminated against the plaintiff because of the treatment of another person.

Seldom are evidence issues in discrimination cases brought before the nation's highest court. Last week, however, the U.S. Supreme Court faced the topic, and ruled that there is no automatic rule of admissibility or inadmissibility as to such "me, too" evidence. Instead, the admissibility will be decided on a case by case basis, and left to the sound discretion of the district court judge. Sprint/United Management Co. v. Mendelsohn, Case No. 06-1221, 552 U.S. --- (Feb. 26, 2008).

In Mendelsohn, a federal court case in Kansas, the plaintiff claimed she was selected for layoff as part of a company-wide RIF at Sprint, due to her age. In her age discrimination lawsuit, she sought to present testimony at trial from five other former Sprint employees, each of whom claimed to have evidence of age bias at the company.

•       Three witnesses said they had heard Sprint managers or supervisors
        make derogatory comments about older workers.

•       One witness had seen a spreadsheet suggesting that a supervisor
        had considered employees' ages when making layoff decisions.

•       Another witness asserted he had been given a negative evaluation and
        banned from work at Sprint because of his age.

•       The final witness said that Sprint had required him to get permission
        before hiring anyone over age 40, that after his termination he had been
        replaced by a younger employee, and that Sprint had rejected his
        applications for re-employment because of age.

The relevancy of this "me, too" evidence was highly doubtful.  None of the five witnesses worked in Mendelsohn's department. None of them worked for the managers involved in the decision to lay-off Mendelsohn. The five "me, too" witnesses did not claim to have heard any discriminatory remarks by those who selected Mendelsohn for layoff. The layoffs in the company-wide reduction in force extended over a lengthy period of time, more than one year. Further, the potential prejudice to Sprint that was presented by these five witnesses was undeniable.     

The trial court judge ruled that the jury could not hear the evidence from the five witnesses.  When making this ruling, the district court judge said that Mendelsohn could only "offer evidence of discrimination against Sprint employees who [were] similarly situated to her."  The judge also commented that "similarly situated" employees were those allegedly discriminated against (a) by the same managers who made the decision to lay-off Mendelsohn, (b) in "temporal proximity" to Mendelsohn's layoff. The jury ultimately found in Sprint's favor as to Mendelsohn's age discrimination claim. 

The Tenth Circuit Court of Appeals, covering the region including Colorado, reversed the district court judge. The Court of Appeals inexplicably interpreted the trial judge's decision as saying that "me, too" evidence is per se inadmissible. (The trial judge, if anything, seemed to articulate two specific factors to be considered by a judge when deciding on the admissibility of such evidence.) By going out of its way to overturn an evidentiary ruling, a ruling typically left to a trial judge's discretion, the Tenth Circuit's decision implied that "me, too" evidence of any type was per se admissible in all discrimination cases.   

The Supreme Court ruled that the Tenth Circuit was wrong in its conclusion that the district court had found "me, too" evidence per se inadmissible. Justice Thomas, writing for a unanimous Court, declared that "me, too" evidence is not per se admissible, nor is it per se inadmissible. Rather, such evidence is subject to the requirements of Federal Rules of Evidence 401 (relevancy) and 403 (prejudice not outweighing probative value). Such questions are for district court judges to decide, in their discretion, because a trial court is "virtually always [] in the better position to assess the admissibility of the evidence in the context of the particular case before it."

The Supreme Court's decision in Mendelsohn corrected a major error by the Tenth Circuit—an error that favored plaintiffs—but the decision is far from a complete victory for employers. The decision provided very little guidance as to when "me, too" evidence should and should not be admitted at trial. Some employers had hoped the Supreme Court would pronounce that all "me, too" evidence is improper, or would put strict limitations on when such evidence may be admitted, or would at least bemoan the problems and prejudice experienced by employers forced to defend themselves when confronted with such evidence. The Supreme Court's decision did none.   

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© 2008 Sherman & Howard L.L.C.                                                          March 3, 2008