Fate of the Federal “No Match” Rules Still Up in the Air

Updating an earlier article, the federal government has reissued its “no-match” rules and appealed last year’s federal district court ruling striking down the originally proposed rules that would require employers to fire workers whose names do not match their social security numbers. Clearly the Department of Homeland Security Agency intends to press this issue.

“Me Too” Evidence May Be Used Against Employers in Age Discrimination Cases

Plaintiffs in discrimination cases often try to introduce into evidence the testimony of nonparty coworkers who claim they too suffered discrimination from their supervisors even though their supervisors were not involved in the adverse employment decision being challenged by the lawsuit plaintiff. The legal issue is whether or not this other-department, other-supervisor testimony is relevant. In a case of a company-wide reduction in force, the U.S. Supreme Court held under the Age Discrimination in Employment Act (ADEA) that such “me too” testimony could be relevant evidence where it is not unfairly prejudicial to the employer and the trial court must weigh and balance these factors: relevance and prejuidicial impact.

The case involved plaintiff Ellen Mendelsohn, formerly an employee of Sprint/United Management Company’s Business Development Strategy Group, who sued her ex-employer when Sprint terminated her as a part of an ongoing, companywide reduction in workforce.

In support of her claim, Mendelsohn sought to introduce testimony by five former Sprint employees who claimed that their supervisors had discriminated against them because of age. Three of the witnesses alleged that they heard one or more Sprint supervisors or managers make remarks denigrating older workers. One claimed that Sprint’s intern program was a mechanism for age discrimination and that she had seen a spreadsheet suggesting that a supervisor considered age in making layoff decisions. Another witness was to testify that he had been given an unwarranted negative evaluation, and was banned from working at the company because of his age, and that he had witnessed another employee being harassed because of her age. The third witness claimed that Sprint had required him to get permission before hiring anyone over the age of 40, that after his termination he had been replaced by a younger employee and that Sprint had rejected his subsequent employment application.

None of the witnesses worked in the Business Development Strategy Group with the plaintiff, nor had any of them worked under the supervisors in her chain of command.

Sprint claimed that the “me too” evidence wasn’t relevant because the former workers were not “similarly situated” to the plaintiff or her separate group or department events under a different supervisor.

The court rejected any blanket “same supervisor” requirement. Instead, it ordered a balancing test to be held by each federal trial court judge:

“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.” Sprint/United Management Company v. Mendelsohn, No. 06-1221, Feb. 26, 2008] MF

Technologies: Management

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