On February 26, 2008, the U.S. Supreme Court issued a unanimous decision in the closely watched case of Sprint/United Management Co. v. Mendelsohn, holding that no per se rule categorically permits or bars evidence of discrimination by other company supervisors completely unrelated to a plaintiff's age discrimination lawsuit.

The plaintiff in Mendelsohn filed suit under the federal Age Discrimination in Employment Act (ADEA), alleging that her employment was terminated on the basis of her age. In support of her claim, the plaintiff sought to introduce testimony from Sprint employees who witnessed discriminatory remarks and conduct by Sprint supervisors or who personally were alleged victims of age discrimination. The witnesses worked in different departments than the plaintiff and had different supervisors. Sprint filed a motion in limine seeking to exclude the testimony of these witnesses under Federal Rules of Evidence 401 and 402, which prohibit evidence deemed irrelevant, and Federal Rule of Evidence 403, which grants judges the discretion to exclude evidence that, while relevant, creates a substantial risk of unfair prejudice.

The district court, without explanation, granted Sprint's motion in limine and prohibited the plaintiff from introducing testimony concerning incidents in which her supervisor was not the decision-maker. On appeal, the Tenth Circuit Court of Appeals presumed that the district court applied a per se rule barring any evidence of discrimination by non-decision-makers. The Tenth Circuit found such a per se rule improper and proceeded independently to consider the relevance of testimony plaintiff sought to introduce, ultimately holding the testimony to be admissible.

The Supreme Court, in an opinion written by Justice Thomas, unanimously held that the Federal Rules of Evidence do not establish any per se rule either permitting or barring evidence of discrimination by non-decision-maker supervisors in ADEA cases. Rather, admissibility "depends on a number of factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case." The Supreme Court reversed the Tenth Circuit, which it said overstepped its bounds by presuming the unexplained basis for the district court's ruling and then usurping the discretion of the district court by ruling on the merits of Sprint's motion in limine. The Supreme Court remanded the case to the district court to engage in the fact-intensive inquiry of relevance and unfair prejudice under the Federal Rules of Evidence.

In the absence of a bright-line rule, the admissibility of "me, too" evidence will continue to be decided on a case-by-case basis. The lesson of Mendelsohn is that employers must remain vigilant in preventing isolated discriminatory remarks. Such remarks, standing alone, often will not give rise to liability. However, the Mendelsohn decision likely will embolden plaintiffs and their lawyers to attempt to aggregate discriminatory remarks and conduct by unrelated supervisors within an organization for the purpose of portraying an overarching discriminatory program or practice.

For more information about this case, or to discuss any other labor and employment issues, please contact a member of our Labor and Employment team.