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Supreme Court Says Trial Judge Has Discretion to Allow "Me Too" Evidence in Discrimination Cases

    Client Alerts
  • February 29, 2008

On Tuesday, the U.S. Supreme Court issued a unanimous decision dealing with admissibility in employment discrimination cases of behavior by supervisors not directly involved with the decisions that form the basis of the claim.  In Sprint/United Management Co. v. Mendelsohn, the plaintiff tried to bolster her age discrimination claim by introducing testimony of five former Sprint employees who claimed that their supervisors discriminated against them because of age.  Sprint sought to exclude the testimony, because none of the other employees worked in the same business unit as the plaintiff, and none worked under the supervisors who made the decision to terminate her employment.


The Tenth Circuit Court of Appeals held that such evidence is admissible to demonstrate the employer’s attitude toward older workers in general.  On appeal, the Supreme Court declined to apply a per se rule regarding the admissibility of such evidence.  Instead, the Court concluded that the question of admissibility of such “me too” testimony falls within the discretion of the trial court.


Under Rules 401 and 403 of the Federal Rules of Evidence, the trial court must determine whether the evidence sought to be introduced is relevant to the discrimination claim.  The court must balance the probative value of such testimony against any prejudicial effect it could have on a jury considering the claim.  In the absence of clear error or abuse, the trial court will have the discretion to render a decision on admissibility.