By Paul Secunda[*]
Although one might have the impression that the missteps referred to in the title of this paper indicate a criticism of the U.S. Supreme Court’s ADEA decision of Sprint/United Management Co. v. Mendelsohn, it does not. I believe the unanimous Court opinion is correct: “Me too” evidence should be admissible in certain instances based on evidentiary principles and based on the overriding importance of context in such cases, as further discussed in Professor Mitchell Rubinstein’s Colloquy Essay.
Rather, the missteps I have in mind are: (1) my own misstep for writing in a previous Workplace Prof Blog post, before the decision, that a per se rule against this type of evidence would be adopted by the usual conservative Supreme Court Justice suspects; (2) the misstep made by the Supreme Court for granting certiorari in this rather mundane (legally speaking) employment discrimination case; and (3) the misstep of Professor Rubinstein in suggesting that the decision in Mendelsohn will provide “important medicine” for employment discrimination plaintiffs and in concluding that this “me too” issue may again raise its narcissistic head before the Court.
Before considering these missteps, it is first important to briefly observe that Mendelsohn does present a common recurring question of proof in employment discrimination cases: whether a district court should admit “me too” evidence offered by either plaintiff or defendant. “Me too” evidence is testimony by non-parties alleging discrimination at the hands of persons who played little to no role in the adverse employment decision being challenged by the plaintiff. A split panel of the Tenth Circuit in Mendelsohn held that a court commits reversible error by adopting a blanket rule to always exclude “me too” evidence.