Monday, December 3, 2007

Supreme Court to hear arguments today on issue of "me too" discrimination

Sprint/United Management v. Mendelsohn, which will be argued today at the Supreme Court, raises an important evidentiary issue that arises time and again in discrimination cases: "whether a district court must admit 'me, too' evidence — testimony by nonparties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff." Although this is an age discrimination case, the Court's holding will almost certainly affect race, gender, and other discrimination lawsuits. The issue is important for businesses, as permitting "me, too" evidence of discrimination will likely make discrimination cases more time-consuming, expensive, and difficult to defend, by forcing companies to defend against allegations brought by employees not parties to the lawsuit.

The facts of Mendelsohn are relatively simple. Ellen Mendelsohn, 51 years old, was one of 18 people in her group laid off by Sprint in the fall of 2002. Company-wide, Sprint laid off 15,000 employees. Sprint claimed that it included Mendelsohn in the RIF because of poor job performance. Mendelsohn claimed age bias in the decision.

At trial, she sought to call five other former Sprint employees, all over the age of 40, to testify that they too suffered age discrimination at Sprint. Sprint objected on the grounds that none of those five employees had worked for the same supervisor who had made the decision to lay off Mendelsohn. The district court agreed, and ruled that only workers laid off by the same supervisor could be called to testify. Ultimately, the jury ruled in Sprint's favor.

The 10th Circuit reversed, ruling that a district court must admit any testimony of other workers who claimed to suffer the same sort of bias against them, even if a different decisionmaker was involved. It rejected Sprint's contention that the testimony was irrelevant because the witnesses were not terminated by the same supervisor as Mendelsohn. The court concluded that Mendelsohn was entitled to show that there was an unwritten "company-wide policy" of discrimination, under which multiple supervisors, and not just Mendelsohn's, were participating. Further, the court was unconcerned whether there was any evidence substantiating the existence of such a policy other than the plaintiff's subjective belief. Instead, the court found that the evidence is relevant and admissible because a jury could reasonably find the alleged discrimination was made more likely by proof of "an atmosphere of age discrimination" and "Sprint's selection of other older employees to the RIF."

There are any number of reasons why this decision should be reversed. In a discrimination case liability can only be shown by demonstrating discriminatory intent on the part of the decisionmaker (i.e, the person who made the relevant employment decision). Mendelsohn's five "me, too" witnesses, however, could offer nothing to show that Mendelsohn's supervisor acted with discriminatory intent. Additionally, no one had any proof that the various different decisionmakers were acting under some common scheme or plan, other than their own unsupported subjective beliefs. I would concede that the case would be different if there was some independent corroboration of a company-wide policy. Finally, I question the appellate court's reversal of a district court's discretionary evidentiary ruling.

This case will also be interesting from a Court-watching perspective, as it will be the third substantive employment decision out of the the Roberts Court. Last term, the Court was 1-1 in employments cases, with the Ledbetter pay discrimination case coming down for the employer, and the Burlington Northern retaliation decision for the employee. My prediction — a reversal with a holding that "me, too" evidence is not per se admissible in discrimination cases. Dicta will make it clear that such evidence is relevant when it is from the same decisionmaker, or from a different decisionmaker with independent evidence of a company-wide policy of discrimination.

A copy of the oral argument transcript is available from the Supreme Court here.

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