ACSBlog: The Blog of the American Constitution Society

by Woodley Osborne, Of Counsel, Mehri & Skalet, PLLC, Washington, D.C.

The Supreme Court will hear argument today in a case presenting important questions regarding the kind of evidence available to plaintiffs alleging employment discrimination. In Sprint/United Management Co. v. Mendelsohn, the Court will be asked to resolve divergent views regarding the admissibility of two categories of evidence: “other supervisor” evidence—evidence that an employer’s supervisors, other than the one who supervised the plaintiff, may also have engaged in acts of discrimination; and "culture evidence"—evidence of a pattern and practice of discrimination.

Ellen Mendelsohn was laid off by Sprint as part of a company wide reduction in force. She sued Sprint claiming that her selection for termination was the product of age bias. At Sprint’s behest the District Court barred Ms. Mendlesohn from introducing any evidence that Sprint “has a pattern and practice, culture or history of age discrimination,” and any evidence regarding discrimination against other employees unless the decision-maker was her supervisor and there was “temporal proximity,” i.e., the decision was close in time to the decision affecting Ms. Mendelsohn.  With this evidence out, the jury returned a verdict for Sprint.

A divided court of appeals reversed, holding that the evidence proffered by Ms. Mendelsohn was “relevant to Sprint’s [alleged] discriminatory animus toward older workers,” and that evidence of a pattern of discrimination is at least circumstantial evidence that the selection of Ms. Mendelsohn for termination was also discriminatory.

This case presents important questions regarding the admissibility of evidence in employment discrimination cases. On their face, the Federal Rules of Evidence establish a very low threshold for the admission of relevant evidence. Evidence is relevant, and hence admissible, if it has “any tendency” to make a plaintiff’s claim “more probable.” See Fed. R. Evid. 401, 402. At the same time, however, the Rules give the trial court discretion to exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” See Id., Rule 403 This discretion to exclude relevant evidence, combined with the strong predilection toward summary judgment, has often operated to the distinct disadvantage of plaintiffs claiming workplace discrimination.

Employees claiming discrimination invariably confront unusually difficult problems of proof. Employers with even a modicum of sophistication do not generally leave overt traces of their discriminatory decisions. Cf., Aman v. Cort Furniture Rental Corp., 85 F. 3d 1074, 1082 (3d Cir. 1996)(“Discrimination continues to pollute the social and economic mainstream of American Life, . . .   often simply masked in more subtle forms. [Discriminators] have learned not to leave the proverbial ‘smoking gun’ behind.”)

These inherent problems are exacerbated by a number of court-made limitations on the kind of evidence available to discrimination plaintiffs. For example, the “stray remarks” doctrine holds that evidence of remarks reflecting bias is not admissible unless the remarks are closely related to the actual decision under attack. The “same actor” inference holds that a person who fires a minority she previously hired is presumed to have acted without bias. And the requirement of “temporal proximity” holds that the time interval between direct evidence of discriminatory animus and the discriminatory act must be very short in order for the evidence to be probative. 

Moreover, a number of lower courts, echoing the contentions of Sprint in this case, have held that admissible evidence in an individual discrimination case must be focused exclusively on the motives and actions of the actual decision maker. Evidence of the actions and attitudes of other employer representatives are frequently excluded as irrelevant or prejudicial. This exclusion of evidence has sometimes even extended to the actions of the decision maker herself when her other actions lack sufficient “temporal proximity” to the actions taken against the plaintiff.  Thus limited, a plaintiff’s burden both in defending against summary judgment and at trial, difficult to begin with, can become virtually impossible. For obvious reasons, the decision maker will never confess to a discriminatory motive and will always be in a position to offer a nondiscriminatory explanation for the action taken against the plaintiff. These burdens are significantly compounded by an employer’s far greater access to information to support its defenses.

Surprisingly, the Supreme Court has not significantly addressed the kind of evidence an employment discrimination plaintiff may adduce. To be sure, the Court has long held that evidence of a “pattern or practice” of discrimination can support class-based relief, and that it also can be relevant to the question of whether there has been discrimination in an individual case. See Int’l Bhd. Of Teamsters v. United States, 431 U.S. 324 (1977); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). It has also made clear that circumstantial, as well as direct evidence, can be equally probative of discriminatory motive. Desert Palace v. Costa, 539 U.S. 90 (2003).

However, the kind and amount of evidence required to establish a pattern or practice of discrimination has never been entirely settled.  It is not clear, for example, whether or not a plaintiff must always rely on statistics to establish such a pattern, or whether and under what circumstances the testimony of individual employees may be sufficient. Nor has it ever been definitively settled whether evidence of a “culture” or “atmosphere” of discrimination is admissible to support an inference of discrimination in a particular case, regardless of whether the evidence is sufficient to support a determination that discrimination is the employer’s “standard operating procedure.” Cf., Teamsters, 431 U.S. at 336. And finally, the evidentiary foundation necessary to permit the admission of evidence beyond that focused on the particular decision maker remains unsettled. 

It is critical that the Supreme Court take this opportunity to make clear that the absolute constraints imposed on Ms. Mendelsohn by the District Court were entirely inappropriate. It is doubtless arguable that some “other supervisor” evidence will be too remote in time and place. But more often such evidence should be admitted because it supports an inference that discriminatory behavior is generally tolerated or approved. This in turn, taken together with evidence establishing a prima facie case, supports the inference that the plaintiff, working for the same employer, was also the victim of discrimination. Evidence of specific acts of discrimination that occurred reasonably near in time or place to the acts against the plaintiff, albeit at the hands of a different decision maker, should be admissible.  

For the same reason, the Court should make clear that the District Courts have full discretion to allow evidence that the plaintiff’s workplace was characterized by an “atmosphere” or “culture” of discrimination. The Court has recently recognized the significance of such a “culture” in an analogous context. See Miller-el v. Cockrell, 537 U.S. 322, 347 (2003)(recognizing the significance of a “culture of discrimination” in a prosecutor’s office in the context of a challenge to the exercise of peremptory challenges during jury selection). In the employment discrimination setting such evidence may well go beyond “other supervisor” evidence. It will, in any event, surely be more subtle than in the days when racism, sexism and ageism were all more overt.  This is all the more reason to allow this evidence. Like “other supervisor” evidence, it plainly has a “tendency” to make a plaintiff’s claim of discrimination “more probable.” Cf., Fed. R. Evid. 401.

Proof of discrimination in today’s workplace requires the gathering of many bits of evidence no one of which may be conclusive. Cf., Bourjaily v. United States, 483 U.S. 171, 179-80 (1987)(The sum of an evidentiary presentation may be greater than its constituent parts.”); Huddleston v. United States, 485 U.S. 681, 691 (1988). In recognition of this, a plaintiff alleging employment discrimination must be afforded the full benefit of the purposely liberal relevancy standards established by the Federal Rules of Evidence.