Tuesday, December 4, 2007

How far to the right has the Supreme Court swung?

In reporting on yesterday's oral argument in Sprint/United Management v. Mendelsohn, the New York Times asks the question: "Has the Supreme Court drifted so far toward the employer's side in job discrimination cases that it is now to the right of the Bush administration?" The answer will not be known until all of this term's employment cases have been decided, but yesterday's oral argument may give us a clue that employees could have a tough go under the Roberts Court.

Many of the Justices seemed very concerned that the admission of "me, too" evidence in discrimination cases would lead to mini-trials of each "me, too" witness. The Justices were also concerned that admission of "me, too" testimony would require correlative admission of "but not us" witnesses in rebuttal by the employer. Trials that could last a mere two days could "last a thousand years," in the words of Justice Breyer, who is not known for his conservative views. The Justices questioned whether it was just simpler and cleaner to exclude the evidence in all but the clearest of cases, such as when the same decisionmaker is involved. After reading the argument transcript, I stand by yesterday's prediction -- the Court will hold that the appellate court erred in reversing the trial court's discretionary exclusion of the "me, too" evidence, and rule that such evidence is neither per se admissible or inadmissible in discrimination cases, but is left to the sound discretion of the trial court under Evidence Rule 403. The Court may also set forth some guideposts for trial courts to follow in exercising its discretion, such as whether the same decisionmaker was involved in the decision to terminate the "me, too" witnesses, or whether there is objective, independent evidence of a policy or practice of discrimination.

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