Justices Express Skepticism in a Discrimination Case

December 4, 2007
Justices Express Skepticism in a Discrimination Case
By LINDA GREENHOUSE
New York Times

Beneath the surface of a Supreme Court argument on Monday in a case of job-related age discrimination was a surprising question: has the Supreme Court drifted so far toward the employer's side in job discrimination cases that it is now to the right of the Bush administration?

The case concerned whether an employee can seek to prove discrimination by offering what is sometimes known as "me too" or "other supervisor" evidence, testimony from other employees who also claim to have suffered discrimination under similar circumstances, but at the direction of different supervisors.

Direct proof of an employer's discriminatory motive is often difficult to produce. So this strategy seeks to build a circumstantial case that a company's culture is one of discrimination.

In this case, the federal appeals court in Denver ordered a new trial after a jury had rejected a woman's argument that her dismissal at age 51 in a reduction in force was a result of age discrimination. The Federal District Court had refused to permit the plaintiff, Ellen Mendelsohn, to present testimony from five other employees who lost their jobs in the same reduction and who claimed age discrimination. Like Ms. Mendelsohn, three of the would-be witnesses were also replaced by younger workers.

After the Supreme Court agreed to hear an appeal from the employer, Sprint/United Management Company (now a division of the merged Sprint Nextel telecommunications company), the Bush administration filed a brief that agreed partly with both sides.

On the one hand, the brief, representing the position of the Equal Employment Opportunity Commission, agreed with the plaintiff that the district court had applied too sweeping an exclusionary standard in keeping the other employees' evidence from the jury.

Evidence of this type is admissible when relevant and when it would not confuse or prejudice the jury, the brief said, citing two of the Federal Rules of Evidence.

On the other hand, the administration disagreed with the United States Court of Appeals for the 10th Circuit that this sort of evidence was always admissible when other employees entitled to the protection of the Age Discrimination in Employment Act lost their jobs under similar circumstances in a reduction in force. The law protects employees beginning at age 40.

The administration urged the justices to send the case back to the district court, in Kansas City, Kan., for a more precise analysis of the relevance and nature of the evidence. This would necessarily be a case-by-case judgment, a deputy solicitor general, Gregory G. Garre, told the justices on Monday.

But several justices, perhaps a majority, appeared more inclined to agree with the employer that such evidence was never admissible, or at least that there should be a strong presumption against admissibility. They questioned the relevance of evidence supposedly showing what had happened to employees other than the plaintiff and suggested that it might require "minitrials" to test the validity of these accusations.

"It's only relevant if it happened," Chief Justice John G. Roberts Jr. told Mr. Garre, adding, "But we don't know how we determine whether it happened or not."

Addressing Dennis E. Egan, Ms. Mendelsohn's lawyer, the chief justice referred to the "other supervisor" evidence as "anecdotes."

Mr. Egan said that the company could put on its own evidence to rebut a "culture of discrimination" argument by showing that discriminatory supervisors were rare. Even some of the more liberal justices appeared dismayed by the prospect of conducting trials within trials to untangle conflicting evidence about how other supervisors might have treated other employees.

Justice David H. Souter said such evidence could be "substantially misleading or prejudicial." Justice Stephen G. Breyer said, "We might do quite a lot of harm by trying to let the Court of Appeals second guess trial courts on this kind of thing."

He added: "We'll have trials that last a thousand years."

Paul W. Cane Jr., representing Sprint, urged the justices simply to overturn the 10th Circuit decision and reinstate the district court judgment to exclude the evidence.

"An employment decision is made by the person who made it, the decision maker," Mr. Cane said. "If some other person harbors bias, that's unfortunate, but it is not probative of claims by a plaintiff who is not affected by it."

Although this case, Sprint/United Management Company v. Mendelsohn, No. 06-1221, concerns age bias, the court's eventual ruling will also govern cases about workplace discrimination based on race and sex.

At the start of the session on Monday, Solicitor General Paul D. Clement formally presented Michael B. Mukasey, the new attorney general, to the court. "We welcome you to the performance of your very important duties," Chief Justice Roberts told Mr. Mukasey, a former federal judge. "We wish you well."