After a long day of taking depositions on Tuesday, there’s nothing like coming back to my computer with dozens of e-mail messages and hundreds of posts to read on the RSS feeds. And, when I saw that the U.S. Supreme Court decided an employment law case, my brain got excited for a brief moment (and frustrated that I spent a day sitting in a conference room).
After all, when "The Nine" (good book by the way) speak, SURELY they must have something important to say.
But alas, the decision issued on Tuesday by the Court is a let down. Don’t get me wrong, I expected the results (though did not go into length about it as the Workplace Prof did), but I was hoping for something more dramatic than the nine-page, unanimous, color-by-numbers and connect-the-dots decision by Justice Thomas.
[The Supreme Court] overturned a federal appeals court ruling on how courts are to treat ”me too” evidence — workplace discrimination testimony by workers other than the one raising a job bias claim. In a unanimous decision, written by Justice Clarence Thomas, the Court found the Tenth Circuit Court in error in deciding on its own, without remanding to a trial judge, that such evidence is admissible.
Federal rules, the Court said, “do not make such evidence per se admissible or per se inadmissible.” It is up to District Courts, in trying job bias cases (here, an Age Discrimination in Employment Act case), to sort out the fact-intensive nature of such evidence. “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,” the opinion said.
Since other employment law bloggers have already dissected what’s left of the decision, perhaps its best to let them start to summarize the case. Here’s the rundown:
- Michael Fox at Jottings by an Employer’s Lawyer calls it "[T]he equivalent to a judicial mulligan"
- Law Memo says the case "was not so much an employment law case as it was an evidence case. It turned on the proper role of the trial courts versus the appellate courts in applying the Federal Rules of Evidence."
- Michael Moore, at the Pennsylvania Employment Law Blog indicates that the true issue that will be at the forefront of the practice is whether employees are "similarly situated" to the employee who has brought the suit.
- Workplace Prof indicates that there is "dicta" language (which for non-lawyers out there means "non-binding") in the opinion that should be watched and calls the decision "a moral victory for ADEA plaintiffs."
- Jon Hyman, at Ohio Employer’s Law Blog, has another good analysis in which he states, "This decision makes a lot of sense. It skirts the ultimate issue of whether "me, too" evidence is admissible or inadmissible because that decision should be fought in the trial court, which is in the best position to examine the evidence and weigh its relevance and admissibility."
- The Laconic Law Blog also finds the Court’s decision unsatisfying and says the "opinion leaves many questions about the admissibility of so-called “me-too” evidence unanswered."
- Not to be outdone, John Phillips at The Word on Employment Law, stated that the case the Court "decided today was hyped, but the Court’s decision didn’t deliver on the hype. Of course, the Court wasn’t hyping it." John closes by hoping that "Maybe the next decision will bring more excitement with it."
- Perhaps Will Schendel, of Alaska Employment Law Blog had it right when he didn’t even waste time analyzing the case and said the equivalent of "ditto" to the analysis of the Workplace Prof.
As you can see, lots of people posted on the case on Tuesday.
For employers, though, the question remains — what’s the practical takeaway from this decision?
In my view, nothing. The Supreme Court’s decision, in essence, is just telling lower courts that sometimes evidence of discrimination of other employees is admissible. And sometimes it isn’t. For employers making employment law decisions, this case will have no effect on how it will treat its employees. After all, employers don’t go into a day thinking — "hey, I’ll treat Bob nice because if I don’t, then Jim is going to use how I treated Bob as evidence in his own discrimination case".
The words of wisdom spouted by others remain true today: Treat employees fairly and it will nearly always reduce the risk of lawsuits and liability.