In Sprint v. Mendelsohn, the U.S. Supreme Court held that admission of "me too" evidence in discrimination cases is fact based and "depends on many factors…." Plaintiff, who was 51 years old and the oldest employee in her department, was laid off during a company-wide reduction in force. She subsequently sued Sprint for disparate treatment based on her age under the Age Discrimination in Employment Act (ADEA).
The district court excluded evidence from former employees over the age of 40 who were also terminated in the same RIF (the "me too" evidence) because they did not work in plaintiff’s group and they did not work for any of the same supervisors. The Tenth Circuit reversed the district court’s ruling as to the "me too" testimony and remanded the case for a new trial.
The Supreme Court granted certiorari on the issue of the admissibility of "me too" evidence. The Court held that whether evidence of discrimination by other supervisors is relevant in an individual ADEA case "is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case." They then remanded the case back down to the district court.
 

In Hicks v. KNTV Television, Inc., plaintiff, a white male, worked as a news anchor for defendant-employer. Plaintiff’s contract was not renewed when it expired. Instead, defendant hired a black male to replace plaintiff. Plaintiff filed suit for discrimination, alleging that the employer did not renew his contract because it was being pressured to hire a minority. The employer argued that it did not discriminate against plaintiff and that plaintiff’s contract was not renewed because his on air personality was too "aloof, distant, standoffish, unapproachable and anchor-like." The trial court found for the employer and plaintiff appealed.
On appeal, plaintiff argued that he was more objectively qualified for the job than his replacement. Plaintiff had more journalism experience, had more experience as an anchor, and had more practical experience in the market. The Court of Appeal, however, rejected these arguments. The Court focused on whether the employer’s proffered reason for not renewing plaintiff’s contract was pretextual. In its analysis, the Hicks court stated that subjective criteria have become more "critical" to making employment decisions; commenting that subjective characteristics like "common sense, good judgment, originality, loyalty, and tact," are "essential to an individual’s success in a supervisory or professional position."
 

Two African-American employees were denied promotions in the defendant’s food processing plant that were ultimately awarded to two Caucasians. Among the proof of discrimination they offered was the fact that their supervisor used the term “boy” in referring to them. The Court of Appeals held that this term was insufficient to show racial bias.

Held: The Court of Appeals erred in laying down a per se rule that the term “boy” cannot constitute evidence of racial bias. Instead, that term first would have to be understood in the context in which it was used, including its historical usage, its usage in the workplace, the familiarity between the parties, etc. On remand, the Eleventh Circuit nevertheless reached the same result as before, finding that the plaintiffs’ evidence of discriminatory intent remained insufficient as a matter of law.

Two African-American employees claimed that the owner of the company pointed a sawed-off shotgun at them and made threatening, racially-biased remarks. These events occurred while the employees were witnesses to a confrontation between the owner and a business agent. The employees claimed they experienced apprehension of imminent harmful contact and as a result felt forced to resign. They sued for race discrimination under Title VII and Pennsylvania state law. The district court granted summary judgment.

Held: The Third Circuit affirmed, rejecting plaintiffs’ argument that the combination of a racial slur and death threat is direct evidence of discrimination. The court found that plaintiffs failed to show they were treated as they were because of race, rather than because they were witnesses to the confrontation. The court concluded that the events were insufficient to show harassment, much less constructive discharge.
 

California’s Department of Labor Standards Enforcement (DLSE) has released two opinion letters (OpLtrs) that should please employers by sanctioning their use of alternate, electronic wage payment methods. The OpLtrs approve the use of payroll debit cards and “Money Network checks” for the payment of wages under the California Labor Code, provided that:

  • The programs make the full amount of wages available to employees on their regularly scheduled payday without penalty or reduction;
  • Employees’ participation in the program is voluntary; and
  • The programs provide a sufficiently extensive network of ATMs and other locations at which employees may access their accounts.
     

The DLSE addressed the use of two types of payroll services: payroll debit cards and a nationwide check cashing service. The programs are voluntary and employees may elect, at any time, to receive their wages by direct deposit into an account at their own bank or credit union.

Before implementing either type of program, employers should work with their legal counsel and make sure they meet all the requirements outlined by the DLSE.