Supreme Court Directs Use of "Me Too" Evidence
Posted by Nancy G. Berner
In its unanimous decision in Sprint/United Management Co. v. Mendelsohn, an age discrimination case, the U.S. Supreme Court explicitly directed a lower court to question the relevancy of testimony by co-workers who claimed they were also subjected to age discrimination, but who played no role in the discrimination allegedly suffered by the plaintiff.
In that case, a former 51-year old Sprint employee alleged that she had been selected to be part of a reduction-in-force because of her age, and attempted to present evidence that five other former employees had also been unfairly treated due to their age. None of the five witnesses had worked in the same group as plaintiff or under the supervisors in her chain-of-command. The trial court held that this so-called "me too" evidence was both unfairly prejudicial and irrelevant because those workers were not similarly situated given that their work had not been overseen by any of plaintiff's direct supervisors; this ruling was subsequently interpreted to mean that such "me too" evidence was per se prohibited in such cases.
The U.S. Supreme Court, however, found that such evidence is neither per se admissible nor per se inadmissible. Specifically, the Court held that the appropriate methodology in such cases would be a fact intensive, case-by-case approach, including an analysis of how closely related the evidence is to the plaintiff's circumstances and theory of the case.
In practical terms, even if the evidence is determined to be relevant, the court must still then determine whether it should be presented to a jury, especially where it could be highly prejudicial to the defendant, also requiring a fact intensive, case-by-case approach. Please contact us directly to discuss any questions you may have relating to the impact of this decision as it relates to your business.