The U.S. Supreme Court yesterday declined to impose an across-the-board prohibition on the admission of socalled “me too” evidence – testimony from employees of the defendant employer who claim to have suffered discrimination on the same protected basis as the plaintiff, but at the hands of different supervisors who played no role in taking action against the plaintiff. Sprint/United Management Company v. Mendelsohn, No. 06-1221 (Feb. 26, 2008).

The plaintiff claimed that she had been laid off because of her age. The district court had granted the employer’s pretrial motion to exclude the testimony of five other former Sprint employees who, like the plaintiff, claimed that their supervisors discriminated against them because of age, but who did not share the same chain of command as the plaintiff and were not even employed in her department. Interpreting the district court’s evidentiary ruling as a per se exclusion of such evidence, the U.S. Court of Appeals for the Tenth Circuit reversed the district court, weighed the probative value of the testimony against the danger of undue prejudice, and found the testimony to be admissible.

The U.S. Supreme Court, while ultimately vacating the Tenth Circuit’s decision as insufficiently deferential to the district court, agreed that the Federal Rules of Evidence provide no automatic bar to the admission of such evidence. “[T]estimony by nonparties alleging discrimination at the hands of supervisors…who played no role in the adverse employment decision challenged by the plaintiff…is neither per se admissible nor per se inadmissible.” The Court instead held that the relevance of such evidence “is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” The question of possible undue prejudice similarly involves “a fact-intensive, context-specific inquiry.”

The Court’s decision thus leaves it to trial judges to determine, on a case-by-case basis, whether to admit testimony from other employees that they were subject to alleged discrimination by their own supervisors, or whether to reject it because it is irrelevant or, even if relevant, because its probative value is substantially outweighed by the undue prejudicial effect it will have on the jury, or the risk of confusing “mini-trials” on what happened to each such other employee. Because there is no per se rule that such evidence should be kept away from a jury, plaintiffs’ attorneys may well seek to discover how management treated other employees in the protected group, even those who reported to different supervisors.