February 29, 2008

Supreme Court Rules on “Me Too” Evidence Case: Sometimes Yes and Sometimes No

Holland & Knight Alert
Kelly-Ann Cartwright

One of the biggest issues in employment discrimination concerns whether plaintiffs can rely on what is called “me-too” evidence: evidence or testimony from other employees who reported to other supervisors that they suffered discrimination as well. Employees try to offer such evidence to show a pattern of discrimination by the company. Employers have objected to such evidence, arguing that the actions of other decision makers are irrelevant. The one thing that has been clear is that if employees can present such evidence, employers are forced to defend against multiple cases and discrimination cases become harder and more expensive to defend.

We expected the Supreme Court to answer whether and when such “me-too evidence” is admissible. But in its decision Tuesday in Sprint/United Management Company v. Mendelsohn, 06-1221 2/26/2008 , the Court failed to provide clear answers, ruling that whether such evidence is admissible depends upon the facts and circumstances of each case.

The Facts in Sprint

Ellen Mendelsohn was employed in the Business Development Strategy Group of Sprint. In 1992, she was terminated as part of a company-wide reduction in force. She sued Sprint alleging that her termination violated the Age Discrimination in Employment Act (ADEA). To support her claim, Mendelsohn sought to introduce testimony of five other former Sprint employees who claimed that their supervisors had also discriminated against them because of age. None of these witnesses worked in Mendelsohn’s business group and none worked under any of the supervisors who supervised Mendelsohn. Sprint sought to exclude the testimony of the five witnesses as irrelevant and likely to confuse the jury and prolong the trial. The trial court excluded the evidence, ruling that Mendelsohn could present evidence only from employees who were similarly situated to her – employees who worked under the same supervisor as Mendelsohn during the same time period. The district court provided no further explanation for its ruling. Without this evidence, Mendelsohn lost the trial.

The Court of Appeals for the Tenth Circuit reversed. It concluded that the district court had created a per se rule that the evidence from employees with other supervisors is irrelevant in proving ADEA discrimination, and that such a rule was wrong. The Tenth Circuit conducted its own analysis and found that Mendelsohn was entitled to a new trial to present this evidence.

The issue before the Supreme Court was whether and under what circumstances testimony by other employees alleging discrimination by supervisors who played no role in the adverse employment decision challenged by the plaintiff is admissible in a discrimination case. The Supreme Court disagreed with the Tenth Circuit, for three reasons. First, it disagreed that the district court had applied a per se rule excluding this type of evidence. Second, the Court said that the trial court, not the appellate court, has to be the one to determine whether this kind of evidence is admissible; the Tenth Circuit erred by making that decision itself and directing the district court to hold a new trial.

Third, and most importantly, the Court said that this kind of evidence – evidence about alleged discrimination by other supervisors – is neither always admissible nor always inadmissible. Rather, whether evidence of discrimination by other supervisors is relevant and admissible in an individual employment discrimination case is fact based and depends on many factors. This case leaves the law on this issue relatively unchanged and does not describe any circumstances under which the Court will always exclude or permit such evidence.

This Issue Is Important

If evidence about the actions of other supervisors is admissible, then employers have to counter not only the plaintiff’s claims of discrimination, but essentially defend other cases involving other supervisors and other decisions. This can make discrimination cases more expensive and harder to win. In light of this decision, which probably will apply to cases under Title VII and the Americans with Disabilities Act as well, employers won’t know whether they will face this kind of “me-too” evidence until the district court decides whether it is admissible – usually right before trial. The decision demonstrates once again the importance of supervisory training and oversight to ensure that supervisors are following your anti-discrimination policies.

Related Insights