Proving Discrimination Claims
It is difficult to prove age discrimination in the workplace. Because it is hard to prove the exact factors motivating a supervisor to fire one of his or her employees, many victims of age discrimination hope to illustrate a discriminatory culture in the workplace by offering the testimony of other employees who suffered the same treatment. A recent case now on appeal to the Supreme Court may result in the exclusion of this type of evidence, not only in age discrimination cases, but in cases of race and gender discrimination as well.
In this case, a federal District Court judge in Denver, Colorado refused to allow a 51 year-old woman, who is claming she lost her job due to age discrimination, to present the testimony of five other co-workers she claims were let go for the same reason. The 10th Circuit Court of Appeals ordered a new trial, stating that this type of evidence is always admissible when other employees under the protection of the Age Discrimination in Employment Act have also lost their jobs. The Supreme Court agreed to hear the appeal filed by Sprint/United Management Company, Ms. Mendelsohn’s former employer, and will decide if this “me too” evidence is admissible. The New York Times reported that the justices in oral arguments on Monday seemed skeptical of this kind of evidence.
If the Supreme Court overturns the 10th Circuit and delineates a rule that does not allow such evidence, its position will be even more extreme than…drum roll please… the Bush administration, which has taken the position- through the Equal Opportunity Employment Commission- that evidence of this type, consistent with the Federal Rules of Evidence, should be admissible when relevant and when it would not confuse or prejudice the jury. If the Supreme Court disagrees, it means that the Supreme Court is becoming more pro-business and anti-plaintiff than the Bush administration. I find this scary.
Whichever way the Court decides, their decision will have a major impact on how future discrimination cases can and will be tried.
Comments
Me too evidence differs dramatically in quality and quantity. Conclusory testimony to the effect that "I was also fired because of my age", while powerfully persuasive to a trier of fact, is utterly meaningless without probing the reasons for the conclusory allegation. That sort of "me too" evidence should in virtually all instances be excluded without more. On the other hand consider the testimony of a co-worker to the effect that "I was told by Plaintiff's supervisor that he was getting rid of me because he had enough of the gray hairs around here". That evidence is also powerful, but it is also highly probative, assuming the supervisor was also the decision-maker. Because the quality and quantity of me too evidence varies so greatly, the value of the evidence likewise differs on a case by case basis with respect to its value to prove or disprove the ultimate issues at trial. Likewise, the substantial risks of mini-trials will vary depending on the nature of the so-called me-too evidence. That is undoubtedly why the Bush Admin appears (according to the entry below) to sponsor trial court discretion under Rule 403 as well as appropriate enforcement of Rule 404. The trial court must weigh the probative value of the evidence against its prejudicial impact under Rule 403, while likewise ensuring that such evidence not be used for the sort of "propensity logic" otherwise excluded under Rule 404. To the extent that the 10th Circuit concluded that me too evidence is always admissible, that position is indefensible. Do we really want simple, single-plaintiff age cases morphed into weeks and weeks of mini-trials on issues of whether the employer discriminated against someone other than the actual party to the lawsuit? No, because that runs directly contrary to the very purpose of the ADEA (and Title VII) which is to provide a speedy remedy to true victims of discrimination who properly perfect their rights through appropriate administrative and judicial channels. Me too evidence is a blunt instrument, and it should only be wielded with great care based on the particular facts of each case.
Posted by: John Bird | December 19, 2007 4:25 PM