The Many Mendelsohn 'Me Too' Missteps: An Alliterative Response to Professor Rubinstein

Abstract

Although one might have the misimpression that the missteps referred to in the title of this paper indicate a criticism of the U.S. Supreme Court's ADEA decision of Mendelsohn v. Sprint/United Management Co., 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, 'Mendelsohn v. Sprint/United Management; The Supreme Court Appears to Punt Whether 'Me Too' Evidence of Discrimination is Admissible or Does It?' Rather, the missteps I have in mind are three and include: (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 the first place 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' evidentiary issue may again raise its narcissistic head before the Court.

Keywords: me too, Mendelsohn, ADEA, employment discrimination, evidence, Rule 403, Rule 401