One of the sure things about employment litigation is that people who claim they are being mistreated at work because they are male, female, black, white, Jewish, Catholic, old, etc. have a posse of enablers or other types who are happy to support the cause with their own "stories" of discriminatory treatment. Frequently, a sizable part of pretrial efforts is filtering out these unrelated claims of discrimination, which range from specific horror stories of mistreatment (which are almost never reported) to more general "everybody knows that Bob doesn't like women" types of statements.
Not only is this type of evidence a part of most discrimination claims, the stories are extremely dangerous if they get admitted at trial. Instead of having to defend against one claim of employment discrimination, an employer suddenly finds itself having to defend against half a dozen, but without the ability to deal with them as effectively because they were not part of the original charge. Often a jury will be overwhelmed with this type of evidence, assuming that if five or six other people come forward now to claim discrimination, there must have been something improper going on, notwithstanding a failure to raise the issue when the conduct actually occurred.
Usually this evidence gets excluded either prior to or at trial. However, the issue has now made it to the top of the legal food chain--the Supreme Court heard oral arguments at the end of November on whether so-called "me too" evidence should be admitted in an age discrimination case.
The case is Sprint/United Management Company v. Mendelsohn, a case out of the 10th Circuit. The plaintiff was a 16-year, mid-level manager who was laid off as part of a reduction in force that extended over three years. She sued in 2003 alleging age discrimination in the layoff, and the District Court granted Sprint's motion to exclude evidence of allegations of discrimination against five other Sprint employees outside the plaintiff's supervisory chain. A jury found for Sprint.
On appeal the 10th Circuit reversed, saying that these other claims of discrimination, even though they were not within the plaintiff's chain of command, were relevant because of the companywide nature of the reduction in force.
At the Supreme Court oral argument, Sprint claimed that the plaintiff's real reason in offering the five witnesses was to bolster her claim, which was weak, with additional unrelated evidence. As the enforcer of federal antidiscrimination laws, the government argued that in some cases anecdotal statements might be appropriate, such as where evidence concretely suggests that a companywide campaign of discrimination is going on, but absent that it should be excluded.
Plaintiff's counsel responded by saying that even where the evidence was overly prejudicial to the employer (and that will be in just about every case), the prejudice could be easily remedied by the proper jury instructions. Yeah, right, jurors routinely follow judges' instructions to ignore inflammatory evidence. Not in my experience, buckaroo. The other major danger here, of course, is that if this evidence is found to be relevant for trial, that means it's relevant to the summary judgment claim as well. Not only could you be litigating each of the anecdotal claims at trial, these claims could preclude you from getting summary judgment in the first place.
Based on the comments from the justices at oral argument, I'll hope the court ends up at the place where it's headed right now--namely to have the trial judge make this call, and allowing the evidence in only where there is other evidence of a companywide or division wide plan of discrimination. Otherwise these cases will become more complicated by an exponential factor.