Workplace Culture May Play A Role In Age Discrimination Claims

Age discrimination claims typically pit a disgruntled former employee against a company and the worker's former supervisor. But a recent decision by the United States Supreme Court offers a subtle reminder that bias claims can be expanded to include virtually anyone in management who has a perceived bias toward older workers. The result is that a plaintiff can portray the entire company as hostile toward who have reached the age of 40. If a trial court allows it, a plaintiff may use this strategy to improve the chances of success.

In Sprint/United Management Co. v. Mendelsohn, a case that by implication challenged the boundaries of age bias lawsuits, the Court left open the right of plaintiffs to introduce evidence of discrimination by company supervisors who ostensibly have no relationship to the claim. The Court concluded that so-called "me too" evidence is neither admissible nor inadmissible as a blanket proposition and that trial courts should retain the discretion to decide whether justice is served by including it.

The case dates to 2002, when Ellen Mendelsohn was terminated from Sprint's Business Development Strategy Group as part of a workforce reduction. The separation, which ended a 13-year employment relationship, prompted Mendelsohn to sue Sprint, alleging disparate treatment in violation of the Age Discrimination in Employment Act (ADEA). The case bounced to the Tenth Circuit U.S. Court of Appeals and the U.S. Supreme Court based on Mendelsohn's attempt to introduce evidence from five former Sprint colleagues who would testify of age discrimination by their supervisors. All five had worked in other departments, had different supervisors than Mendelsohn, and had never heard those in her chain of command make discriminatory remarks.

Sprint moved to exclude the testimony, arguing that it was irrelevant to whether Mendelsohn was terminated because of her age. The district court granted the motion, limiting testimony to those who were "similarly situated" to Mendelsohn, meaning those with the same supervisor who were subject to the same job performance standards and discipline. The Tenth Circuit reversed and ordered a new trial, finding that the evidence should have been admitted because it was relevant and not unduly prejudicial. Applying the facts to the Federal Rules of Evidence and the principle that trial courts are in the best position to weigh the probative value of evidence, the Supreme Court vacated the Appeals Court ruling and sent the case back to the District Court with instructions to clarify its evidentiary decision.

Mendelsohn does nothing to change the burden of proof in age discrimination claims. Specifically, the ADEA prohibits an employer from discharging an employee because of age. Employees who are 40 years or older are in the "protected class" for the purposes of the ADEA. To establish a claim, an employee must show that age motivated the employer's decision; i.e., that it played a role in the employer's decision-making process and had a determinative influence on the outcome. Such a claim may be proved through direct or indirect evidence.

However, Mendelsohn, while principally focused on evidentiary rules and the interpretative authority of the courts, is nonetheless a cautionary tale about the behavior of corporate management. Supervisors who have no "older" workers within their authority can be swept into the adjudication of an ADEA claim if they have a habit of denigrating older workers through off-the-cuff remarks on the shop floor. A former employee with a weak cause of action can potentially bolster the case by portraying the company as a social club for those who are "out to get" older workers.

When the time is right, people tend to have long memories. So take to heart the hint from Mendelsohn: At least in the business context, what you say can hurt you.

Questions? For questions or comments concerning this topic, please contact Attorney Brian G. Nuedling in our Milwaukee office at (414) 291-0600, or by email at brnuedling@milw.w-p.com.