3/5/2008

Suppose an employee files a discrimination lawsuit against you, claiming she was let go in a reduction in force because of her age. To help prove her case, she wants to paint a picture of a corporate culture of age bias. She plans to do this by introducing testimony from former co-workers who also claim to be victims of age discrimination at your organization, even though the managers involved in those allegations played no role in the decision to terminate this employee. Arguing that this "me too" evidence is irrelevant to whether this employee was discriminated against, you ask the trial court to exclude it. How should the court rule?

This question was the focus of a case filed against Sprint/United Management Co. by former employee Ellen Mendelsohn. After a federal appeals court allowed the testimony from Mendelsohn's co-workers, the case went up to the U.S. Supreme Court.

The Supreme Court has now handed down a unanimous ruling, vacating the appeals court decision and sending the case back to the trial level. The high court held that whether evidence of discrimination by other supervisors is admissible in an individual discrimination suit must be determined on a case-by-case basis. This determination, said the court, must be fact based and it depends on many factors. Thus, a trial court must make a "fact-intensive, context-specific inquiry" to determine whether such evidence is relevant to the case and whether it might unduly prejudice the employer.

The Supreme Court's decision doesn't provide a clear win for employers or employees on the issue of "me too" evidence. But it could turn out to have a more positive impact for employees, in age discrimination and other types of bias suits. That's because many federal courts around the country had been taking the position that such evidence was always inadmissible. Now, these courts will have to approach each case on its own merits, making a detailed inquiry into the relevance of the co-workers' experiences to the individual discrimination issues at hand—and at least in some of these cases, the outcome will be in the employees' favor.