The Supreme Court Takes a Look at "Me Too" Evidence
In an employment discrimination lawsuit, can a plaintiff offer the testimony of other current or former employees who believe that they too had been discriminated against? According to the United States Supreme Court in Sprint/United Management Co. v. Mendelsohn, (February 26, 2008), the admissibility of such evidence will depend on the circumstances of the plaintiff’s case and the plaintiff’s theory of liability. However, the Supreme Court largely avoided the tough issue before it, i.e., ruling on the per se admissibility of “me-too” evidence in discrimination cases.
Mendelsohn sued Sprint alleging a company-wide pattern of age discrimination. Mendelsohn sought to introduce testimony by five former Sprint employees who claimed that their supervisors had also discriminated against them because of their age. However, none of the witnesses had the same supervisor as Mendelsohn or reported hearing discriminatory remarks by Mendelsohn’s supervisor. In fact, none of the witnesses even worked in the same department as Mendelsohn. Essentially, Sprint asked the trial court to exclude the testimony because the other employees were not “similarly situated” to Mendelsohn.
The District Court excluded this evidence at trial, and Sprint prevailed. However, on appeal, the Tenth Circuit said the District Court was wrong to apply a blanket rule excluding the “me too” evidence. Subsequently, Sprint appealed the decision to the U.S. Supreme Court.
Sprint took the question to the Supreme Court, which reversed, sending the case back to the trial court for further explanation of its exclusion of the “me-too” evidence. The Supreme Court decided that “me too” evidence is neither per se admissible nor per se inadmissible. The Court held that the admission of such evidence “depends on many factors, including how closely related the evidence is to the plaintiffs circumstances and theory of the case.” Accordingly, trial courts must carefully weigh the facts and circumstances of each case in deciding if “me too” evidence is admissible.
Employers should be cautioned by this decision. Based on this ruling, plaintiffs may be more inclined to allege company-wide discrimination in an effort to permit them the opportunity to offer “me too” evidence at trial. As a result, defense attorneys should seek to identify a plaintiff’s “me too” evidence as early as possible, and make every effort to demonstrate that the witnesses offering “me too” evidence are not similarly situated with respect to the plaintiff.
