12 Pages Posted: 13 Mar 2008 Last revised: 6 Jul 2008
This Essay discusses the use of me too evidence where parties, usually plaintiff's, seek to buttress their case by pointing to other employees who assert that they were infected by the same disease of discrimination as well as the U.S. Supreme Court's first decision discussing this critically important issue, Sprint/United Management Co. v. Mendelsohn.
The use of me too evidence has proven to be controversial. Indeed, employment discrimination cases often turn on whether a plaintiff has been able to come up with an appropriate comparator who was treated differently than he or she was.
Though scholars who have had the opportunity to opine about the Sprint case have characterized the U.S. Supreme Court decision as a judicial punt because of its remand on procedural grounds, this Essay asserts that this decision is going to turn out to be significant to the developing jurisprudence involving employment discrimination. This is principally because of dicta in Justice Thomas' unanimous per curiam opinion which implicitly approves of the use of such evidence. While it may be difficult to precisely define the line between admissible and inadmissible me too evidence, it is clear that the Court rejected any type of rule which would flatly prohibit the introduction of such evidence simply because the putative witnesses did not share the same supervisor as the plaintiff.
Keywords: me too evidence, employment discrimination, evidence, Supreme Court
JEL Classification: J7, J70, J71, J78, J79
Suggested Citation: Suggested Citation
Rubinstein, Mitchell H., Sprint/United Co. V. Mendelsohn: The Supreme Court Appears to Have Punted on the Admissibility of 'Me Too' Evidence of Discrimination - But Did It?. Northwestern Law Review Colloquy, Vol. 102, p. 264, 2008. Available at SSRN: https://ssrn.com/abstract=1105403