Age discrimination hits Supreme Court

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(FORTUNE Small Business magazine) Washington, D.C. -- To what extent can an employee plaintiff use testimony from co-workers to prove that a company discriminates based on age? That's the issue that the Supreme Court took up Monday morning in Sprint and United Management Company versus Mendelsohn.

Under the Age Discrimination Employment Act of 1967 (ADEA), it's illegal to fire employees based on their age. But companies generally don't acknowledge that age discrimination plays a role in their firing decisions. As a result, terminated workers who suspect age discrimination must find other evidence to prove their cases.

Courts currently admit testimony from other workers in "similar" situations to decide whether a so-called culture of discrimination exists at a given company. But the ADEA doesn't explicitly define what constitutes a similar situation, which explains why the high court agreed to hear Mendelsohn.

The case is relevant to all companies, although courts generally presume that workers at the smallest firms are all in the same situation with regards to discrimination.

Sprint laid off Ellen Mendelsohn in November 2002, during a company-wide downsizing that eliminated between 14,000 and 15,000 positions. The 51-year-old sued Sprint, arguing that she had been fired because of her age.

Sprint won a pre-trial motion that would have barred Mendelsohn from introducing the testimony of co-workers who shared the same supervisor. Five former Sprint employees who had also been laid off from Mendelsohn's division testified on her behalf, even though they did not report to her supervisor.

The district court threw out their testimony for this reason, and the jury ultimately ruled in Sprint's favor.

Mendelsohn appealed, arguing that the "me-too" evidence should have been allowed. The 10th Circuit Court of Appeals in Denver agreed with her and ruled that the lower court had erred in excluding this evidence. Sprint then appealed to the Supreme Court.

The reversal frustrated business organizations such as the U.S. Chamber of Commerce, which filed an amicus brief arguing that allowing "me-too" evidence from employees with no connection to the plaintiff would produce unreasonably long and expensive trials.

During yesterday's oral argument, Justice David Souter suggested that a broad definition of "me-too" evidence could indeed complicate the course of justice by forcing courts to decide whether other witnesses also faced discrimination. "My concern is that there will be confusing trials based on the evidence," he said.

Justice Stephen Breyer echoed Souter's concerns, worrying that trials would "last a thousand years" if plaintiffs were allowed to submit testimony from workers with different bosses to prove a company-wide culture of discrimination.

Mendelsohn's lawyer, Dennis Egan, argued that Mendelsohn's former colleagues were in the same situation as his client because they worked in the same division and were laid off at the same time under the same company-wide initiative.

Sprint's attorney, Paul Cane, retorted that a worker alleging discrimination should have to prove that different decision-makers within a company were influenced by each other.

"A pattern of practice is not established by anecdotes," Cane said. Justices peppered him with questions about where to draw the line between similar and different employment situations within the same company.