February 20, 2008
Potential Far-Reaching Consequences for Employers if "Me Too" Evidence is Allowed in Employment Discrimination Cases: The U.S. Supreme Court Considers Sprint v. Mendelsohn.
The U.S. Supreme Court will decide Sprint/United Management Co. v. Ellen Mendelsohn, (No. 06-1221, U.S. Sup.) this year, resolving the issue of whether "me too" evidence is admissible in court to prove employment discrimination. "Me too" testimony is testimony by nonparty individuals, such as employees who are not participating in the instant lawsuit, who claim they were similarly discriminated against by other supervisors in the same company. Introduction of such evidence may have significant consequences for employers as it can have a substantial and prejudicial impact on a jury and will often determine the victor at trial.
The outcome of the case (which will likely be decided prior to June 2008), is of particular significance as lately more and more employers are forced to conduct company-wide reductions in force similar to the one conducted by Sprint. This article will address some of the troublesome issues that arise for employers with the admission of "me too" testimony, provide a background of the Mendelsohn case, and suggest some guidelines for employers to follow to defend against similar claims.
In Mendelsohn, a 51 year old employee was laid off as part of a RIF and sought to introduce the testimony of five other employees (who were also over 40 years of age and laid off as part of the RIF) regarding their perceptions of discrimination while at Sprint. Significantly, although they were all terminated as part of the same RIF, none of the five employees worked for the same supervisor or in the same department as Ms. Mendelsohn. The trial court found this to be determinative and ruled that only persons who were similarly situated to Ms. Mendelsohn, meaning their positions were eliminated at around the same time and they had the same supervisor, could testify. Without the testimony of these witnesses the jury returned a verdict in favor of the employer.
Ms. Mendelsohn later appealed to the U.S. Court of Appeals for the 10th Circuit, which reversed the jury's verdict and held that even though none of the five ex-employees were similarly situated to her (they did not have the same supervisor), the "me too" evidence should have been admitted as probative evidence of discrimination. Sprint petitioned for certiorari to the U.S. Supreme Court, asserting that the 10th Circuit had established a per se rule requiring the admission of such "me too" evidence, in conflict with the decisions of the U.S. Supreme Court and several other U.S. courts of appeals (2nd, 3rd, 5th and 6th Circuits).
As employers will recognize, the U.S. Supreme Court’s decision regarding the admissibility of "me too" evidence can have far-reaching consequences. If the Supreme Court finds that admission of "me too" evidence is in fact probative and admissible, defending age discrimination cases will become more difficult, expensive and time-consuming for employers and their counsel. Moreover, admission of such testimony can confuse the jury, embolden plaintiff’s lawyers, and lead to increased numbers of lawsuits by disgruntled employees. Finally, plaintiff’s lawyers will gain more leverage in inducing settlements as employers will be forced to factor the increased costs associated with defending marginal claims involving potential "me too" testimony.
Regardless of which way the U.S. Supreme Court decides, employers should take note of the importance of conducting detailed due diligence interviews with each of their managers when eliminating employees, especially during company-wide RIFs. Prior to implementing a RIF, employers should also consider running a detailed statistical analysis to alert them of any red flags that may arise with respect to specific protected categories. As always, employers should be comfortable that employees selected for termination are being selected for legitimate reasons and maintain accurate and up-to-date documentation in their personnel files.