Oct 01, 2007

Employment Cases Before the Supreme Court: Part 1

court_front_med.jpgIt's the first Monday in October, the day when the Supreme Court begins its new session. There are quite a few cases on controversial topics this year, including the legal status of detainees at Guantanamo Bay, the validity of a law that requires voters to present a photo ID, and the constitutionality of execution by lethal injection.

The Court will hear a handful of employment cases too, including several on discrimination and retaliation. I'll fill you in on the other cases in later posts, but I'm most interested in finding out how the Justices rule in Sprint/United Management Co. v. Mendelsohn. This is an age discrimination case in which the plaintiff, Ellen Mendelsohn, was laid off. At trial, Mendelsohn wanted to call five former employees as witnesses, to testify that they, too, had been laid off as a result of age discrimination. The trial judge didn't let them testify, because they weren't in Mendelsohn's department and weren't laid off by her supervisor. Sprint won at trial, and Mendelsohn appealed.

The federal Court of Appeals for the 10th Circuit ruled in Mendelsohn's favor, finding that the testimony was relevant and should have been presented at trial. The Court of Appeals stated that this testimony might help Mendelsohn prove that there was a company-wide policy of illegally considering age when deciding who should be laid off.

Sprint then appealed to the Supreme Court. The Court agreed to hear the case because the Circuit Courts are split on whether this type of testimony (called "me too" evidence) is admissible in a discrimination case.

One of the most basic evidentiary guidelines (codified as Federal Rule of Evidence 403) is that even relevant evidence may be kept out at trial if its "probative value" -- its weight or usefulness in proving something at trial -- is outweighed by the possibility that it will cause unfair prejudice, create confusion, mislead the jury, or generally waste everyone's time. Employer groups claim that "me too" testimony has little evidentiary value and a high likelihood of muddying the waters at trial. Employee advocates counter that this type of evidence is very probative because it helps reveal the motive behind employment decisions, which can be very difficult for plaintiffs to prove at trial unless a company decision-maker was walking around calling people names.

This is a big case because the issue comes up so often. One of the most significant pretrial battles in many employment lawsuits is whether to admit testimony from other employees -- and, if the testimony will be admitted, how much they'll be allowed to say. Both sides are willing to spend time and money fighting over this because it can determine who wins at trial. The Supreme Court's decision could well shape the outcome of federal discrimination lawsuits for years to come.

To learn about the Age Discrimination in Employment Act and other federal laws that affect employers, check out my & Attorney Amy DelPo's book The Essential Guide to Federal Employment Laws (Nolo).

Lisa Guerin