A Victory, Sort Of

Earlier this month, I noted that there were five cases set to be heard by the US Supreme Court this session on age discrimination. The decision on the first of those cases came out yesterday, according to this article in the NY Times.

The issue in this case was whether testimony from other employees discharged by other supervisors could be introduced to show a pattern of discrimination against older workers by the employer. In the unanimous decision, the Supreme Court essentially held that sometimes that testimony could be admitted, and sometimes it couldn't.

The unanimous decision, in an age-discrimination case against Sprint/Nextel, did not answer the bottom-line question in the case: whether five co-workers of the plaintiff, Ellen Mendelsohn, should have been allowed to testify. All had lost their jobs in the same reduction in force and claimed, as she did, to be victims of age discrimination.

But the way the court analyzed the case, in a somewhat cryptic nine-page opinion by Justice Clarence Thomas, may prove more significant in the long run than the absence of a specific answer. ...

The question of whether evidence of discrimination by other supervisors should be admitted in an individual case “is fact based and depends on many factors,” Justice Thomas wrote. A district court, he said, should make a “fact-intensive, context-specific inquiry” to determine the relevance of the evidence and whether it might be unduly prejudicial to the defendant.

I think this is more than just the Supreme Court deciding not to decide, and that in the long run, the ruling will be important to those bringing employment discrimination cases of any kind.

While technically a victory for the employer, because an adverse ruling was vacated, the decision is likely to prove more favorable in the long run to discrimination plaintiffs. That is because many lower courts, taking an approach similar to that of the Kansas district court, have been dismissing cases, granting summary judgment to employers on the ground that co-workers’ testimony, which often provides the strongest proof of a pattern of discrimination, is inadmissible.

Under the Supreme Court’s case-by-case approach, plaintiffs will have a greater chance of surviving summary judgment and getting their cases before a jury.

The case is important because it gives elder employees a shot at proving that they were fired because of their age. There often is no other way to prove the necessary pattern than to provide testimony from others in the company in the same situation. It's not hard to understand why older employees are often the first to go in a force reduction: they often have been with the company longer, so their wages are higher and their benefits more expensive (especially when it comes to health insurance). Now those employees have a way to avoid having their suits dismissed before trial on purely evidentiary grounds.

I am pleasantly surprised, especially given the author of the decision.