Supreme Court Rules on ‘Me Too’ Evidence

The U.S. Supreme Court has completed its review of a key Kansas age discrimination case, settling a split between federal courts on the admissibility of “me too” evidence.

“Me too” evidence is testimony by non-parties that alleges discrimination at the hands of persons who played no part in the challenged employment decision. In the present case, Ellen Mendelsohn, a 51-year-old unit manager with Sprint, alleged that the company fired her because of her age during a companywide reduction in force.

In support of her claim, Mendelsohn tried to introduce testimony from five former employees who claimed that they experienced similar treatment by other supervisors. Sprint asked the court to exclude any evidence of the company’s alleged discriminatory treatment of other employees, arguing that acts committed by any supervisor other than Mendelsohn’s were irrelevant to the case. The district court agreed and excluded the evidence, but the U.S. 10th Circuit Court of Appeals overturned that decision, holding that the court abused its discretion by excluding this evidence.

The Supreme Court held that the 10th Circuit erred in its decision by assessing the relevance of the evidence itself, rather than remanding the case to the lower court. Accordingly, the Supreme Court vacated the 10th Circuit’s decision, Sprint dodged a bullet, and the evidence in question will be reviewed again by the lower court.

And the bottom line on “me too” evidence? The high court concluded that such evidence is neither per se admissible nor per se inadmissible, but that the distinct facts of each case will determine the appropriateness of such evidence. So employers can’t completely count out the cries of “me too,” but at least they won’t be automatically counted in, either. Sprint/United Management Co. v. Mendelsohn, No. 06-1221.