On February 26th and 27th the United States Supreme Court published its decisions in two important cases in the arena of Employment Law -- Sprint/United Management Co. v. Mendelsohn and Federal Express Corp. v. Holowecki. These cases are two of a surprisingly large number of employment-related cases accepted for decision by the high court in recent days, and they will both likely have significant repercussion in the employment arena.
Sprint/United Management Co. v. Mendelsohn involved the allegedly discriminatory termination of a 13-year employee as part of a company-wide reduction in force. The employee filed a lawsuit that alleged age discrimination in violation of Age Discrimination in Employment Act ("ADEA"). At trial, the employee sought to introduce evidence that other employees had also been discriminated against by Sprint, even though those other employees were not similarly situated to plaintiff and this additional discrimination was not perpetrated by the same people who allegedly discriminated against plaintiff. This "me too" evidence was not allowed by the trial court, but the appellate court ruled that the trial court impermissibly applied a per se rule banning "me too" testimony, and held that it was admissible.
Upon review, the Supreme Court refused to adopt a per se rule either allowing or disallowing this type of "me too" evidence, declaring that "[r]elevance and prejudice … are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules." Therefore, the mandate from the Supreme Court is that lower courts should engage in a "fact-intensive" and "context-specific" inquiry as to the admissibility of "me too" evidence in a particular situation.
In Federal Express Corp. v. Holowecki, the plaintiffs claimed that Federal Express Corp. violated the ADEA by instituting two company-wide policies which plaintiffs allege were designed to separate older employers from the company before they qualified for retirement benefits. The district court dismissed the lawsuit on the basis that plaintiffs had failed to comply with the ADEA's requirement that "no civil action may be commenced by an individual under [the ADEA] until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission." The Second Circuit Court of Appeals reversed the lower court's decision and reinstated the lawsuit, holding that the EEOC intake questionnaire form and accompanying six-page affidavit filed in this case were sufficient to constitute a charge.
The Supreme Court, in it's ruling, showed deference to the EEOC's interpretation both of the ADEA and its own regulations issued under that Act. The EEOC applies a "request-to-act" test to determine whether or not a particular filing constitutes a charge under the statute, and the Supreme Court's decision in this case puts its stamp of approval on that test. Therefore, the analysis for whether documents filed with the EEOC constitute a charge is "whether the filing, taken as a whole, should be construed as a request by the employee for the agency to take whatever action is necessary to vindicate her rights." In this case, the Court held that the intake questionnaire and affidavit filed with the EEOC contained language which was sufficient to be considered as a request for the EEOC to take action.
The practical effect of these two rulings by the Supreme Court could be wide-ranging for employers. After the Mendelsohn decision, trial courts now have broad discretion to allow or disallow evidence of other discrimination -- wherever it may occur within a company -- when an employee or former employee brings a lawsuit for her own discrimination -- regardless of whether it bears any real relation to her situation or not. Similarly, after Holowecki, it is likely that lower courts will begin to exhibit more deference to the EEOC's internal interpretations of discrimination statutes and the formal regulations issued under those statutes. Therefore, it will become even more important for employers and their counsel to be familiar with those informal interpretations in addition to the statutes and regulations themselves.
Michael Newman is a Partner in the Cincinnati office of Dinsmore & Shohl LLP, where he chairs the firm's Labor & Employment Appellate Practice Group. He represents a broad range of business clients, both large and small, in the state and federal courts.