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The Issue of "Me Too" Evidence in Employment Discrimination Cases: The U.S. Supreme Court Considers Sprint v. Mendelsohn


Monday, Dec. 10, 2007

The U.S. Supreme Court recently agreed to consider the case of Sprint v. Mendelsohn, which raises the question whether "me too" evidence is admissible to prove employment discrimination.

"Me too" evidence refers primarily to testimony by other employees of a defendant describing their own experience suffering discriminatory treatment by the same employer. The plaintiff offers such evidence to prove that whatever the employer did to him or her was also the product of a discriminatory motive.

In deciding this case, the Court will address a question that has divided the lower courts. The issue of "me too" evidence highlights as well a more general, significant feature of the detective-work involved in smoking out illicit motives: Determining what "motivated" an institution may be quite different from figuring out what motivated a particular human being, even though institutions are made up of human beings.

The Facts and Issues in Sprint v. Mendelsohn

In this case, Ellen Mendelsohn, a former employee of Sprint/United Management Company (Sprint), alleged that Sprint selected her for termination, during a company-wide reduction in force (RIF), because of her age. She was fifty-one years old at the time, the oldest manager in her unit, and she subsequently brought her suit under the Age Discrimination in Employment Act (ADEA).

In support of her claim, Mendelsohn offered the testimony of five other employees over the age of forty who lost their jobs as part of the same RIF and who believed that they too were victims of age discrimination. In a pre-trial motion, though, the trial court ruled that this testimony would be excluded because Mendelsohn's supervisor, Paul Reddick, did not supervise the other witnesses who were terminated. The U.S. Court of Appeals for the Tenth Circuit, however, reversed the trial judge's decision, finding that the exclusion of these employees' testimony constituted an abuse of discretion and remanding the case for a new trial.

In so ruling, the Court of Appeals found that a "same supervisor" rule - limiting testimony of other terminated employees to that of people working under the same supervisor - did not make sense in the context of a company-wide RIF. "In this case," the court explained, "the other employees' testimony is logically tied to Sprint's alleged motive in selecting Mendelsohn to the RIF."

Individual Discriminators versus the Discriminating Employer

When we think about the concept of discrimination, we may imagine a particular person who makes a decision to act against a target because of the target's race, sex, age, or other suspect classification. If a police officer, for example, gives an abusive response to Jane Roe's request for directions on the street, we would label his behavior discriminatory if he would have treated a questioner of a different sex or race more respectfully. If we determine that Roe's sex or race played a role in motivating the officer's obnoxious behavior, in other words, then we would say that he had "discriminated" against Roe.

However, an employer - Sprint, in the case before the Supreme Court - may not always be an actual human being who experiences brain states that we would call "motivations." It may instead be a collective entity at which decision-making is distributed among a group of people known as "management" or "supervisors." During an RIF, when an employer terminates a large number of presumptively qualified people, the question of discrimination is concerned less with determining how any one supervisor was personally motivated to select his targets, than it is with identifying the forces operating at a higher level, an inquiry which includes but is not limited to a particular person's way of thinking.

Another way of describing the distinction to which I allude is to say that an institution can be engaged in employment discrimination and that detecting such discrimination is not always a simple matter of identifying a discriminating actor and attributing his conduct to the larger institution. Calculating whether or not the institution discriminated in targeting an individual may thus require observations of more than one specific supervisor. Indeed, it may be impossible to tell whether an institution has engaged in discrimination without examining the broader context of how others were treated within the same workplace during the same period of time.

Saying that institutions themselves can engage in discrimination provides an insight about workplaces: They have a life and a character of their own. The field of psychology has identified the "fundamental attribution error," a phenomenon by which we tend to attribute a person's behavior to his specific character or personality rather than attributing it - as it often is, in fact, causally related to - the circumstances in which he is acting. For example, if someone is rude to me in a high-traffic situation on the street, I am likely to conclude that he is a rude person; it might be, however, that people in traffic tend to behave rudely and that he is, as a general matter, no ruder than anyone else.

We might, similarly, assume that some people - those who are "sexist" or "racist" by disposition - are simply more prone to discriminatory conduct than others. But this assumption will often be mistaken. It may be, instead, that the circumstances within one workplace are more conducive to discrimination than the circumstances within another. Accordingly, an action by an otherwise non-discriminating individual supervisor is more likely to reflect a discriminatory motive when it takes place in one work environment than it might in another. To this extent, a workplace develops a "culture," and people tend to conform themselves to that culture, so that even when all of the "bad apples" have left, the same old nasty approach remains.

The Whole and the Discriminatory Sum of Its Parts

One could read the Tenth Circuit opinion in Sprint v. Mendelsohn more narrowly, as holding merely that when one ex-employee in a large-scale termination claims discrimination, it is useful to know whether other ex-employees appeared to have been discriminatorily terminated as well. If an older plaintiff is unique in claiming discriminatory termination, in other words, she might well appear to have been mistaken.

This reading of Sprint, however, appears incomplete. If the true question were simply "Why did Mendelsohn's supervisor, Paul Reddick, decide to select her for termination during the RIF?", then another supervisor's decision to discriminate against a different employee would not obviously shed light on Reddick's motivational process. The reason other decisions do illuminate Reddick's choice is precisely because, in a work environment, motivations for company-wide actions are not entirely discrete and person-specific. Though no explicit directive to eliminate the older people might have gone out, the priorities and concerns of an institution tend to make themselves known via more subtle channels. It is in this sense that while an individual's behavior varies dramatically with the circumstances facing him, the stable character of an institution endures, for better or for worse.

Sherry F. Colb, a FindLaw columnist, is a Visiting Professor at Columbia Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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