"Me Too Evidence" - A Do Over

What could have been one of the more important cases actually impacting employment law trials in this Supreme Court term was just handed down with what may appear to be a disappointing thud.

The issue was one that comes up frequently -- so called "me too" evidence about discrimination occurring to employees other than the particular plaintiff. If such evidence is admissible it is a boon for plaintiffs; exclusion is a winner for employers.

Here's the end game of Justice Thomas' opinion for a unanimous Court:

The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how —————— closely related the evidence is to the plaintiff’s circumstances and theory of the case. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context-specific inquiry. Because Rules 401 and 403 do not make such evidence per se admissible or per se inadmissible, and because the inquiry required by those Rules is within the province of the District Court in the first instance, we vacate the judgment of the Court ofAppeals and remand the case with instructions to have the District Court clarify the basis for its evidentiary ruling under the applicable Rules.

Sprint United Management Co. v. Mendelsohn (S.Ct 2/26/08) [pdf].

In other words -- the equivalent of a judicial mulligan.

Spinning it (irony intended) another way, although it will depend on the particular judge, for those appearing in front of judges who are concerned about trials spilling out of control, which includes most federal judges, the fact that the Supreme Court today emphasized the discretionary nature of the ruling should favor employers.