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Univ. of South Carolina School of Law

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Friday, May 29, 2009

Drag Me To Hell: Court Finds Discriminatory Remarks Not Precluded By Rule Against Hearsay In Employment Discrimination Suit

Federal Rule of Evidence 801(c) indicates that

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. 

But, as the United States District Court for the Middle District of Pennsylvania found in its recent opinion in E.E.O.C. v. Schott North America, 2009 WL 310897 (M.D. Pa. 2009), discriminatory remarks made about the suitability of particular employees which serve as circumstantial evidence of a discriminatory atmosphere in an employment discrimination suit are not hearsay because such statements are not offered to prove the truth of the matters asserted.

Schott concerned

the 2004 reorganization of glassmaking operations at a plant in Duryea, Pennsylvania operated by Defendant Schott North America....Prior to the reorganization, glassmaking production had been divided into two sets of jobs. Jobs on the "cold end" of the production line were largely staffed by women, while those on the "hot end" of the line were largely performed by men. The reorganization resulted in the elimination of one type of glass production from the factory and a downsizing of the workforce. The division of production between the "hot end" and "cold end" was eliminated. In order to staff the reorganized production line, defendant created the new position of "Melting Line Operator" ("MLO"). Plaintiffs contend[ed] that the system that defendant developed and used to assign the new MLO-referred to here as "the matrix"-resulted in unlawful discrimination on the basis of sex. They contend[ed] that the matrix as designed and implemented by defendant both enshrined a long history of discrimination against women in training and job assignment and improperly valued the skills most likely possessed by men. Plaintiffs raise[d] both a disparate impact and a direct sex discrimination claim.

In support of their claims, the plaintiffs sought to introduce testimony indicating, inter alia, that Schott employee Lenny Cushner claimed that the plant would “go to hell” if women had jobs traditionally held by men. Schott brought a motion in limine which, inter alia, sought to preclude testimony concerning Cushner's statement under Federal Rule of Evidence 802 because it constituted hearsay under Federal Rule of Evidence 801(c).

The court disagreed, noting that 

[c]ourts have concluded that discriminatory remarks made about the suitability of particular employees which serve as circumstantial evidence of a discriminatory atmosphere in an employment discrimination suit are not hearsay, since “the statements were not offered to prove the truth of the matters asserted.” 

Applying this principle to Schott, the court found that "Cushner's statement [wa]s not hearsay, since plaintiffs d[id] not attempt to prove the truth of the matter that the workplace would 'go to hell' if too many women had particular jobs." This seems to me to be a correct (non)application of the rule against hearsay.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/05/helleeoc-vschott-north-america-incslip-copy-2009-wl-310897mdpa2009.html

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