Rubinstein on "Me Too" Evidence

Mitch Rubinstein (adjunct at St. John's and NYLS and of Adjunct Prof Blog fame) has just posted on SSRN his article Mendelsohn v. Sprint/United Management: The Supreme Court Appears to Punt Whether "Me Too" Evidence is Admissible ... Or Does It?.  Here's the abstract:

This Essay discusses the use of "me too" evidence where parties, usually plaintiff's, seek to buttress their case by pointing to other employees who assert that they were infected by the same disease of discrimination as well as the U.S. Supreme Court's first decision discussing this critically important issue, Sprint/United Management Co. v. Mendelsohn.
 
The use of "me too" evidence has proven to be controversial. Indeed, employment discrimination cases often turn on whether a plaintiff has been able to come up with an appropriate "comparator" who was treated differently than he or she was.

Though scholars who have had the opportunity to opine about the Sprint case have charactered the U.S. Supreme Court decision as a "judicial punt" because of its remand on procedural grounds, this Essay asserts that this decision is going to turn out to be significant to the developing jurisprudence involving employment discrimination. This is principally because of dicta in Justice Thomas' unanimous per curiam opinion which implicitly approves of the use of such evidence. While it may be difficult to precisely define the line between admissible and inadmissible "me too" evidence, it is clear that the Court rejected any type of rule which would flatly prohibit the introduction of such "me too" evidence simply because the putative witnesses did not share the same supervisor as the plaintiff.

Mitch's essay is well worth reading -- check it out!

rb