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Job bias and “me, too” evidence

Workers who believe they lost a job or a workplace opportunity because of their age must offer proof that their age was the motivating factor for what happened to them. Since there is seldom direct evidence of the employer’s mindset, lawyers for workers in such cases try to prove a general propensity in the management of the company to favor younger workers. On Monday, the Supreme Court said it will consider, at its next Term, whether a worker claiming discrimination under the Age Discrimination in Employment Act can bring other workers into the case to testify that they, too, were victims of age bias on the job — so-called “me, too” evidence. The other workers would not have been in the case as actual parties, but were available to tell their stories to help prove the claim. (The new case does not involve a claim of a pattern or practice of discrimination based on age, but only a single worker’s claim.)

The case involves Ellen Mendelson, who worked for a company in Kansas City, Mo., named Sprint/United Management Co. (a subsidiary of Sprint Nextel Corp.) She was on the payroll there from 1989 to November 2002, working in business development activities.

In the fall of 2002, the Sprint unit, hit by the recession that generally spread through the telecom industry, decided to downsize its payroll. Other Sprint units elsewhere were also involved in the cutback, with the release of some 15,000 workers.

Mendelson, at the time, was 51 years old. She was laid off — one of 18 persons in her group who lost their jobs in the downsizing. Sprint later claimed that her performance had been weak, and that is why she was included in the group that got laid off. She claimed age bias was the controlling factor, charging company-wide discrimination against older workers. The Equal Employment Opportunity Commission rejected her challenge, finding no evidence of an ADEA violation. She thus was free to sue, and did so.

She asserted in her lawsuit that the bias against her was typical for the Sprint unit. Her lawyers then began assembling proof for the trial.

Mendelson’s counsel sought to call five other ex-employees of Sprint, all within the 40-and-over age range — the range protected by ADEA from discrimination. They, too, were ready to testify that they also were victims of discrimination, as was Mendelson. Sprint lawyers objected, arguing that they were not in the same situation as Mendelson, because none of them had worked for the supervisor who made the decision to lay off Mendelson. The District Court ruled that only workers laid off by the same supervisor could be called to testify on Mendelson’s claim, so it barred the prospective witnesses on her side. The case went to a jury, and it ruled in favor of Sprint, finding no discrimination against Mendelson.

The case then moved to the Tenth Circuit, which ruled in a 2-1 decision last Nov. 1 that a District Court trying an ADEA case must admit any testimony of other workers who claimed to suffer the same sort of bias against them — even if they had worked for a different supervisor, or in a different work unit for the same employer. While the Circuit Court said that, in the past, it had limited testimony in a job bias case to that of other workers who had the same supervisor, it stressed that the prior case involved only a claim of discriminatory disciplinary actions, and it had never applied that restriction in any other workplace context.

If “me, too” evidence were excluded when different supervisors were involved, the Circuit Court said, that would make it significantly more difficult in many circumstances to prove discrimination based on circumstantial evidence. Conceivably, an individual worker might be the only employee chosen for a reduction in force by a particular supervisor, but scores of other workers within the 40 and older group might have been treated the same way by other supervisors.

Sprint/United’s petition for review raises this question: “whether a district court must admit ‘me, too’ evidence — testimony by nonparties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff.” It contends that the Tenth Circuit ruling conflicts with decisions in other circuits — four holding that such evidence is wholly irrelevant, and five excluding it under the Federal Rules of Evidence. The issue, the appeal said, is a recurring question of proof in workplace discrimination cases.

The appeal is supported by he Equal Employment Advisory Council and the Society for Human Resource Management. They contended that admission of “me, too” evidence will prolong litigation in workplace cases, and will unfairly prejudice management as it seeks to defend itself, since management would be forced to justify every other employment decision it had made against any worker who is allowed to come in and testify.

The case will be briefed over the summer, and will be heard sometime in the fall or early winter.