Posted On: December 7, 2007 by Ronald V. Miller, Jr.

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.