By David L. Gregory[*]
In the essay that started this discussion, Professor Mitchell Rubinstein provides a clear analysis of the Supreme Court’s decision in Sprint/United Management Company v. Mendelsohn and points out the lack of consistency in post-Sprint decisions. Professor Rubinstein correctly concludes that, on balance, plaintiff-employees in employment discrimination cases ultimately stand to benefit more than defendant-employers from the Sprint decision. And, equally important, he predicts “that Sprint is going to result in much more ‘me too’ evidence being admitted, [which may result in] more expansive plaintiff discovery requests seeking out comparative employees and where such evidence is found, lengthier trials.”
Sprint is a substantially practical decision. Accordingly, Professor Rubinstein does not attempt to impose an abstract theoretical framework onto the Sprint decision. Indeed, “me too” cases will continue to be decided on a case-by-case basis, without reference to a larger theoretical picture. An analogy to the proverbial “forest and the trees” is tempting, with the trees being various employment discrimination decisions and the forest the jurisprudence underlying employment discrimination cases.
Yet, perhaps it is more helpful to think instead of an already dense, and now dramatically proliferating underbrush composed of employment discrimination cases turning on the admission of “me too” evidence and testimony. Whether the courts clear out, set fire to, or fertilize this underbrush, is the open question with which Professor Rubinstein concludes his essay: “because the Court did not definitively resolve the issue, there likely will be additional litigation until the Supreme Court resolves it once and for all.” Hence, litigators and particular parties seem destined, at least for now, to continue trudging through the underbrush of “me too” evidence and employment discrimination law. But, if we ever make it through the post-Sprint underbrush, where, exactly, will we be?