Total Articles: 7
Disparate Impact and the Non-Traditional Plaintiff
At the start of the year, I noted that one thing that seemed to be a "trend" was litigation by non-minority plaintiffs. See, 2011 -- the Year of the Non-Minority?
Is the EEOC Setting up Employers for Spoliation Claims?
An office of the U.S. Equal Employment Opportunity Commission has issued a "Document Retention Notice" that appears to be designed to turn meritless cases into spoliation claims. This is another example of how the EEOC has turned itself into a prosecutorial agency with no real pretense of impartiality. Employers need to respond accordingly.
Supreme Court Punts In "Me Too" Case.
The U.S. Supreme Court issued its decision in Sprint/United Management Co. v. Mendelsohn. This case raises the important issue of whether so-called "me too" evidence can be introduced in employment discrimination litigation. The high court failed to answer this question, however, deferring to district courts to evaluate whether the probative value of such evidence outweighs the prejudicial effect.
Supreme Court Holds That "Me Too" Evidence May Be Admissible (pdf).
A recurrent issue in employment discrimination cases is whether “me too” evidence—testimony by other employees that they have been discriminated against by supervisors who did not make the decision being challenged by the plaintiff—can be introduced to prove discrimination against the plaintiff.
Supreme Court Rules on “Me Too” Evidence of Discrimination.
The U.S. Supreme Court has held that testimony by non-parties to a lawsuit claiming they were subject to discrimination by individuals other than those accused in the lawsuit is neither per se admissible nor per se inadmissible. See Sprint/United Management Co. v. Mendelsohn (February 26, 2008). In Sprint, the Court held that the relevance and prejudice of this evidence must be determined in the context of the facts and arguments in a particular case.
In this case, Mendelsohn claimed she was chosen for discharge during a reduction in force (RIF) because of her age in violation of the Age Discrimination in Employment Act (ADEA). At trial, she sought to introduce the testimony of other former employees who claimed they were subjected to age discrimination while they were employed by Sprint. However, none of these employees worked in the same business unit as Mendelsohn and none claimed to have been subjected to discrimination by any of the supervisors in Mendelsohn’s chain of command, including the individual who made the decision to discharge her.
Supreme Court Issues Non-Decision on "Me Too" Evidence.
Today the Supreme Court delivered its opinion in Sprint v. Mendelsohn reinforcing its long standing rule that district courts are afforded wide discretion on evidentiary matters. Practitioners were disappointed that the Court provided little, if any, guidance on the substantive issue before it. Instead the decision focuses more on the deference that appellate courts must give to the decisions of lower federal district courts, and holds only that admission of "me too" evidence is fact based and "depends on many factors...."
Ninth Circuit Decision Imputes Subordinate Employee’s Unlawful Bias To Employer If Subordinate Influenced Or Was Involved In Decision-Making Process (scroll down).
In Poland v. Chertoff, James Poland, a long-standing employee of the U.S. Customs Service based in Portland, Oregon, complained of age discrimination against his supervisor, Gary Hillberry.
