Age Discrimination in Employment--Mendelsohn case

This is a big case for all interested in employment law issues. As with many important cases, it is based on a very simple issue (See below...after the preliminary "facts"). The case arises out of what we are now calling the "bursting" of the Internet "bubble" after the vertiginous rise of the stock market until 2000. As a result of this "bubble" bursting, many companies had to downsize. The phone company Sprint could then neither sprint nor even jog, and it ended up laying off about 14,000 employees in 2002. Ellen Mendelsohn, who had worked with Sprint for 13 years, was one of those laid off. Companies use the lingo RIF (Reduction-in-force) to cushion the blow, but the result is the same--someone with lots of experience was fired. By the way, we now have a new verb in English as a result of "RIF" terminology. Someone who has been "riffed" has been laid off.

Mendelsohn took stock of her situation and thought that she, at age 51, was fired based on her age. The ADEA (Age Discrimination in Employment Act), passed in 1967, gives plaintifs relief if their dismissal (or discrimination in promotion, wages, etc.) was based on an age-based discriminatory act against someone 40 years of age or older (29 USC 621 et. seq.). Well, the company never comes out and says to you, "Mendelsohn, you are 51; we are going to get rid of you for this." Of course, it, like most forms of discrimination in America now, is much subtler. You have to be skilled in reading intentions, observing company-wide behavior, picking up on locker-room gossip, etc.

Well, Mendelsohn felt she had a case, especially when she realized that five other "over 40" people believed they had evidence, too, that their firings in the same RIF were age-related. Though a company, and a court, may find it easy to dismiss age-bias charges of one individual, when you have five with similar stories--well, the company begins to sweat. There was only one "catch" in all of this, as there always is for cases that make it this far. The other five people who were fired worked under different supervisors than Mendelsohn.

That, friends, is the crux of the entire case. Let's put the question in a slightly more legal form before unpacking it. Should a court require, as a condition of admitting testimony of terminated co-workers, that they had the same supervisor and were terminated around the same time? Or, should the court take a more liberal stance and allow for testimony of terminated workers throughout the company on the discrimination issue? Everyone would say that the co-workers must be "similarly-situated," but what does this enigmatic phrase really mean?

Thinking About the Issue

I think we can see, or at least articulate good reasons, for both sides of the argument. Sprint contends that to allow plaintiffs to fish through files of 14,000 dismissed workers in order to find a few that might have similar stories (of course there would be tons of people over 40 terminated in such a firing) would not only bog down the company but would create open season for lawsuits in the courts. In fact, statistics kept by the US Equal Employment Opportunity Commission show that in 2006 there were 75,768 discrimination claims brought under federal statutes, of which an astonishing 16,548 were ADEA claims. Thus, Sprint is arguing for a rule which would limit these lawsuits, many of which are desperate acts of aging workers (so the claim runs) to try to hang onto a legal raft when theirs as well as every one else's house is washing away.

Yet, on the other hand, the arguments are no less persuasive on the other side. Mendelsohn's case is powerful precisely because she was the only person dismissed by her supervisor. If one required a "same supervisor" rule in order to allow testimony at trial from co-workers, one could almost by definition remove supervisors with few employees from the application of federal discrimination laws. For example, if a racial minority was dismissed by a supervisor who only supervised only one or two other employees, who were not dismissed, the racial minority would have no grounds to bring suit and rely on testimony of other dismissed workers from other departments. Evidence of "company-wide" discrimination, then, would be eliminated. In addition, one of the reasons why so many age-discrimination complaints are brought is that people over 40, and certainly over 50, have well-founded fears that they are becoming unemployable in our rapidly-changing and youth-oriented culture.

The Decision Below

The Tenth Circuit (Rocky Mountain/Plains States) decided in Mendelsohn's favor, reversing the district court--which had excluded testimony at trial of other laid-off co-workers. Opinion is here. It distinguished an earlier case in its circuit on the issue by saying that the narrow rule (evidence permitted only from workers dismissed by same supervisor) was relevant in disciplinary, rather than dismissal, cases. Other circuits, however, have split on the issue. This, as we know, is one of the grounds for the Supreme Court's taking a case (Rule 10). So, the Supreme Court will decide this case--a case that will doubtless have significant effects on evidence available to plaintiffs in all types of civil rights employment discrimination cases. How will the Court lean? That is anyone's guess, but I wouldn't be surprised if it would lean right...

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