Outten & Golden: Empowering Employees in the Workplace

Supreme Court Surprise

September 10th, 2008 | Ellen Simon

Three years ago, I was interviewed by Court TV about the John Roberts nomination. In preparation, I painstakingly reviewed his record. In so doing, I reached the unpleasant conclusion that Roberts was philosophically opposed to civil rights and other legislation for the public good which Roberts deemed to an improper exercise of congressional power.

The Roberts’ point of view, it seemed to me, was that since Congress should not have authored this legislation to begin with, it must be as narrowly construed as possible. This was the only logic I could discern which connected a long record of what appeared to be outright hostility to plaintiffs in civil rights cases.

I was extremely worried about what might happen with Roberts at the helm of the Court. The Samuel Alito nomination, with a record equally as hostile to plaintiffs in civil rights cases as that of Roberts, made me feel even more concerned. The harsh reality of Clarence Thomas and Antonin Scalia combining with these forces was a truly frightening prospect.

But the fact remains that we never really know with any precision what one will do after ascension to the Supreme Court actually occurs. Nothing surprised me more than the Court’s decision this past year in the decision of Sprint v. Mendelsohn – and it was a very pleasant surprise indeed.

Civil rights cases are hard to prove. There is seldom direct evidence of discrimination. People don’t go around saying, “we’re not going to hire you because you’re black,” or “we’re firing you because you’re old.” More often than not, we have to prove our cases by circumstantial evidence. Part of that evidence is proving that the reason give by the employer’s decision to fire, or not hire, is not true or not believable.

Other circumstantial evidence routinely offered is that the same thing or something similar happened to co-employees. The admissibility of this kind of evidence, labeled by the defense bar as “me too” evidence has been a battleground since we started trying to prove these cases over a quarter century ago.

Lawyers who represent employees want to call other employees as witnesses to testify about the discrimination that happened to them at the same company. Simply put, these lawyers contend that co-employee testimony is circumstantial evidence that this company discriminated in this particular case because it did the same thing to other employees. In their view, the jury ought to be able to consider this evidence and give it whatever weight they choose in making the ultimate determination as to whether the plaintiff was discriminated against or not. Lawyers who represent companies don’t want those witnesses to take the stand. They say that what happened to others is not relevant, proves nothing, is confusing and prejudicial, and will result in a bunch of mini-trials about other people who are not parties to the case.

Some courts have let the evidence in. Some courts have barred it. The significance of this kind of ruling can not be overstated since one’s ability to put on co-employee testimony before a jury can make the difference as to whether the case will be won or lost. For example, where a story about why one thirty-year employee got terminated may seem plausible in isolation, it certainly seems less plausible when there are five or six other long term employees whose performance was suddenly not good enough for a company where each has worked without incident for twenty or thirty years.

Ellen Mendelsohn was terminated in a reduction of the workforce by Sprint, a company where she had worked for many years. She claimed age discrimination. Mendelsohn’s lawyer (Kansas City lawyer Dennis Egan, member of the Workplace Fairness board) attempted to introduce evidence from five other older workers who also claimed they were discriminated against because of their age when they were terminated. Three of the five were prepared to testify about denigrating remarks made about older workers. Another claimed that he was banned from working at Sprint because of his age. One was going to testify that he was required to get permission before hiring anyone over the age of forty. None were in the same department as Mendelsohn. The judge ruled the evidence inadmissible because there was no shared decision maker and no temporal proximity. The Tenth Circuit Court of Appeals reversed and held that the evidence was admissible.

The Supreme Court accepted the case. In a decision which has a profound effect on the future of employment discrimination cases, the Court held that the trial court judge was wrong. The unanimous decision, shockingly authored by Justice Thomas, stated that a blanket rule of law excluding evidence of discrimination from co-workers in a discrimination case was wrong as a matter of law. The Court relied in its opinion on the Federal Rules of Evidence with respect to relevance, admissibility, and prejudice which vests the trial court with broad discretion on these matters. The trial court should determine whether the evidence has probative value and whether sufficient prejudice or confusion may outweigh it. It is a fundamental and liberal standard of evidence which leans toward the admission of evidence given the proper context and foundation.

So while the decision did not endorse the 10th Circuit’s view in concluding that the evidence was admissible, the opinion is earth shattering in the world of employment law for what it didn’t say – that is, that the evidence was not per se inadmissible. In other words, the Court ruled, “me too” evidence should be treated just like any other evidence in any other case.

It may seem odd that it took a pronouncement of the Supreme Court to let judges and lawyers know that the same rules that apply to evidence in all civil cases also apply in discrimination cases. But in the tortured history of discrimination litigation, the same rules unfortunately have not been applied (i.e., the granting of summary judgment where material facts are in dispute, the improper weighing of evidence by the court instead of the jury).

An opinion by the Supreme Court which held the evidence inadmissible would have been a huge blow to employees faced with the already formidable task of proving that discrimination has occurred. Fortunately, the Supreme Court in an exceedingly pleasant surprise made an important inroad–just by reciting and reinforcing the rules of evidence and thereby neutralizing the playing field.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. She has been listed in the National Law Journal as one of the nation’s leading litigators. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. Ellen has been listed as one of The Best Lawyers in America for her landmark work representing individuals in precedent-setting cases. She also received regional and national attention for winning a record $30.7 million verdict in an age-discrimination case – the largest of its kind in U.S. history. Ellen has served as an adjunct professor of employment law and is an experienced and popular orator. Ellen is Past-Chair of the Employment Rights Section of the Association of Trial Lawyers of America and is honored to be a fellow of the International Society of Barristers and American Board of Trial Advocates. In additional to work as a legal analyst, she currently acts as co-counsel on individual employment cases, is available as an expert witness on employment matters and offers consulting services on sound employment practices, discrimination awareness and prevention, complaint investigation and resolution, and litigation management. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. Ellen has two children and lives with her husband in Sedona, Arizona.

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