U.S. Supreme Court Provides Little Guidance on When “Me Too” Evidence May Be Admitted in Employment Cases
« back to News index

Many employment cases involve employees’ attempts to prove discrimination through the use of “me too” evidence.  “Me too” evidence is testimony from other employees about alleged discriminatory treatment they witnessed or suffered, often at the hands of persons who played no role in the decision at issue.  Lawyers for employers frequently argue that “me too” evidence is not relevant to the challenged employment decision, confuses the issues, and creates the need for burdensome “mini-trials” within a trial.  Whether “me too” evidence will be admitted is currently determined by courts on a case-by-case basis.
 
And after much hoopla, very little, if anything, has changed.  Today the U.S. Supreme Court issued a much-anticipated decision in a case involving an employee’s attempted use of “me too” evidence: Sprint/United Management Co. v. Mendelsohn, 552 U.S. __ (U.S. Feb. 26, 2008).  Most employers will be disappointed by it.  The Court declined the opportunity either to categorically reject “me too” evidence, or to provide specific guidance as to when it may be admitted.  Instead, the Court sent the case back to the trial court to further clarify the basis for its decision to exclude the plaintiff’s “me too” evidence.
In its short opinion, the Supreme Court stated that there are no per se rules as to whether “me too” evidence must be admitted or rejected in employment cases.  Instead, the issue must continue to be decided on a case-by-case basis depending on “many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.”  Determining whether the evidence unfairly prejudices the employer is also a “fact-intensive, context-specific inquiry” to be resolved in individual cases.
 
The Bottom Line for Employers
 
Employers wanting more guidance from the Supreme Court on this significant issue will, unfortunately, have to wait until the issue makes its way to the Court again someday.   In the meantime, employers will need to continue to utilize existing precedent when arguing for the exclusion of “me too” evidence.
 

*  Muskat, Martinez & Mahony, LLP represents employers in labor and employment lawmatters.  For more information, visit our website at www.m3law.com, or contact any of our lawyers:
 
Mike Muskat, (713) 987-7851, mmuskat@m3law.com
Samantha Martinez, (713) 987-7852, smartinez@m3law.com
Michelle Mahony, (713) 987-7849, mmahony@m3law.com
Stephanie Schmutz Parente, (713) 987-7853, sparente@m3law.com
Amy Ferber, (713) 987-7850, aferber@m3law.com