On Tuesday, February 26, 2008, in an age discrimination case, the United States Supreme Court unanimously held that so-called “me too” evidence – evidence that other individuals have been discriminated against on a similar basis (e.g., age), but under different circumstances – may be relevant to an employee’s discrimination case, but it is a fact specific inquiry that will be left to the discretion of trial courts.
In Sprint/United Management Co. v. Mendelsohn, the employer terminated a 13-year employee as part of a company-wide reduction in force. The employee filed a lawsuit alleging age discrimination in violation of the Age Discrimination in Employment Act. In preparing for trial, the employee sought to introduce evidence that other employees, in varying circumstances, had been discriminated against on the basis of age. These “me too” witnesses were to testify about various instances of alleged age discrimination, including the following: (1) commentary by one or more Company supervisors or managers denigrating older workers; (2) fostering age discrimination through the Company’s intern program; (3) the existence of a spreadsheet suggesting that a supervisor considered age in making layoff decisions; (4) bad reviews because of an individual’s age; (5) harassment of employees because of their age; and (6) requirements that one supervisor had to seek permission before hiring individuals over the age of 40.
The Supreme Court’s holding leaves a decision concerning the admissibility of this evidence firmly in the hands of the trial court. The Supreme Court refused to adopt a per se rule concerning the inclusion or exclusion of this evidence, stating that “[r]elevance and prejudice . . . are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules.” Accordingly, the Supreme Court has ordered trial courts to engage in a “fact-intensive” and “context-specific” inquiry as to the admissibility of “me too” evidence.
The real significance of the Supreme Court’s decision for employers is that trial courts will have broad discretion to determine the relevance and potential prejudice of “me too” evidence. The best defense in such circumstances is to proactively prevent stray comments by employees before such comments are ever made. No tolerance policies should be adopted and supervisors need to be trained to understand that even casual comments or statements may be used against their employer in a discrimination case.