By Mitchell H. Rubinstein[*]

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Introduction and Background

Employment discrimination continues to infect many employers.[1]  However, finding the source of the infection has never been easy.[2]  This Essay discusses the use of "me too" evidence where parties, usually plaintiffs, seek to buttress their case by pointing to other employees who assert that they were infected by the same disease of discrimination. Even before the Supreme Court's first decision discussing this critically important issue, Sprint/United Management Co. v. Mendelsohn,[3] the use of "me too" evidence was controversial.[4]  It is important to analyze this case because employment discrimination cases often turn on whether the plaintiff has been able to come up with an appropriate "comparator" who was treated differently than he or she was.[5]

In examining the significance of Sprint, it is also important to be aware of the general evidentiary environment that governs federal court litigation. Under Rule 401 of the Federal Rules of Evidence (FRE), there is a low threshold for the admissibility of evidence: the evidence in question has to "only slightly affect[] the trier's assessment of the probability of the matter to be proved."[6]  Additionally, as the Seventh Circuit explicitly stated, Rule 403 "tilts in favor of admissibility."[7]  Because the search for truth is imperiled by the exclusion of what would otherwise be relevant evidence, courts are required to exclude evidence under 403 only "sparingly."[8] Thus, under this standard, courts are required to give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.[9]

Another significant evidentiary doctrine is that the law of evidence distinguishes between the admissibility of evidence and the weight that such evidence is too be afforded.[10]  Stated somewhat differently, anecdotal evidence need not be dispositive to be relevant and therefore admissible.[11]

It is also clear that the context of the "me too" evidence will also matter. This is because context almost always matters when interpreting witness statements.[12]  Therefore, it may not even be possible for the Court to ultimately lay down a specific rule applicable to all cases.[13]  One thing that is clear, however, is that these general evidentiary principles tend to support the introduction of evidence.  But these principles only provide a rough framework for analyzing whether "me too" evidence should be admissible.

There are several easy categories of "me too" cases.  Those categories include attempts to prove the presence of a culture or atmosphere of discrimination,[14] attempts to establish the existence of a hostile work environment,[15] and attempts to show a pattern or practice of discrimination[16] where the "me too" evidence concerns the same decisionmaker as the plaintiff.[17]  However, the answer to the question of whether such evidence can be admitted where, as in Sprint, different supervisors are involved is not easy.

Though scholars have characterized the Sprint decision as a "judicial punt" because of its remand on procedural grounds,[18] this Essay asserts that Sprint will turn out to be significant to the developing employment discrimination jurisprudence.  This is principally because of dicta in Justice Thomas' unanimous opinion, which implicitly approves of the use of such evidence. While it may be difficult to precisely define the line between admissible and inadmissible "me too" evidence, it is clear that the Court rejected any type of rule that would flatly prohibit the introduction of "me too" evidence simply because the putative witnesses did not share the same supervisor as the plaintiff.

This Essay asserts that the use of "me too" evidence is likely to significantly increase as a result of the notoriety of the Sprint decision and the increasing importance of comparative-type evidence to employment discrimination litigation.[19]  Part I of this Essay discusses the state of affairs involving "me too" cases leading up to the Sprint decision.  Part II then discusses the Sprint decision itself and explains why the Supreme Court decision is significant.[20]  This Essay concludes by postulating how both employers and employees may try to make use of the Sprint decision in future employment discrimination litigation.

By Paul Secunda[*]

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Introduction

Although one might have the impression that the missteps referred to in the title of this paper indicate a criticism of the U.S. Supreme Court's ADEA[1] decision of Sprint/United Management Co. v. Mendelsohn,[2] it does not.  I believe the unanimous Court opinion is correct: "Me too" evidence should be admissible in certain instances based on evidentiary principles and based on the overriding importance of context in such cases, as further discussed in Professor Mitchell Rubinstein's Colloquy Essay.[3]

Rather, the missteps I have in mind are: (1) my own misstep for writing in a previous Workplace Prof Blog post, before the decision, that a per se rule against this type of evidence would be adopted by the usual conservative Supreme Court Justice suspects;[4] (2) the misstep made by the Supreme Court for granting certiorari in this rather mundane (legally speaking) employment discrimination case; and (3) the misstep of Professor Rubinstein in suggesting that the decision in Mendelsohn will provide "important medicine" for employment discrimination plaintiffs[5] and in concluding that this "me too" issue may again raise its narcissistic head before the Court.[6]

Before considering these missteps, it is first important to briefly observe that Mendelsohn does present a common recurring question of proof in employment discrimination cases: whether a district court should admit "me too" evidence offered by either plaintiff or defendant.[7]  "Me too" evidence is testimony by non-parties alleging discrimination at the hands of persons who played little to no role in the adverse employment decision being challenged by the plaintiff.[8]  A split panel of the Tenth Circuit in Mendelsohn held that a court commits reversible error by adopting a blanket rule to always exclude "me too" evidence.[9]

By David L. Gregory[*]

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Introduction

In the essay that started this discussion, Professor Mitchell Rubinstein provides a clear analysis of the Supreme Court's decision in Sprint/United Management Company v. Mendelsohn[1] and points out the lack of consistency in post-Sprint decisions.[2]  Professor Rubinstein correctly concludes that, on balance, plaintiff-employees in employment discrimination cases ultimately stand to benefit more than defendant-employers from the Sprint decision.[3]  And, equally important, he predicts "that Sprint is going to result in much more 'me too' evidence being admitted, [which may result in] more expansive plaintiff discovery requests seeking out comparative employees and where such evidence is found, lengthier trials."[4]

Sprint is a substantially practical decision.  Accordingly, Professor Rubinstein does not attempt to impose an abstract theoretical framework onto the Sprint decision.[5]  Indeed, "me too" cases will continue to be decided on a case-by-case basis, without reference to a larger theoretical picture.  An analogy to the proverbial "forest and the trees" is tempting, with the trees being various employment discrimination decisions and the forest the jurisprudence underlying employment discrimination cases.

Yet, perhaps it is more helpful to think instead of an already dense, and now dramatically proliferating underbrush composed of employment discrimination cases turning on the admission of "me too" evidence and testimony.[6]  Whether the courts clear out, set fire to, or fertilize this underbrush, is the open question with which Professor Rubinstein concludes his essay: "because the Court did not definitively resolve the issue, there likely will be additional litigation until the Supreme Court resolves it once and for all."[7]  Hence, litigators and particular parties seem destined, at least for now, to continue trudging through the underbrush of "me too" evidence and employment discrimination law.  But, if we ever make it through the post-Sprint underbrush, where, exactly, will we be?

By Mitchell H. Rubinstein[*]

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Professors Gregory and Secunda and I are all interested to see what impact Sprint/United Management Company v. Mendelsohn[1] will have on the admissibility of "me too" evidence in employment discrimination litigation, and in particular, comparative evidence from another employee of the defendant-employer who did not share the plaintiff's supervisor, but was affected by a similar type of adverse employment action—such as the reduction in force (and accompanying layoffs) at issue in Sprint.  Professor Gregory and I predict that Sprint will result in much more litigation over this issue of admissibility,[2] while Professor Secunda remains skeptical that Sprint will have much of an impact at all.[3]

Professor Gregory's essay highlights the central problem in employment discrimination jurisprudence today—proving or disproving claims of harassment with only circumstantial evidence. Discussing sexual harassment cases, Professor Gregory states that many cases boil down to nothing more than "'he said, she said' debate[s]."[4]  He goes on to compare "he said, she said" with "me too" cases and postulates that while the admission of "me too" evidence will provide more support for claims of harassment, one result of Sprint may be that litigants will attempt to present an endless line of "me too" witnesses.[5]  Professor Gregory does not opine on what Sprint means with regard to the actual admissibility of "me too" evidence; instead he simply concludes that this will be left "to the pragmatic wisdom of trial court judges."[6]