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Stall Tactics

Published in Ms. Magazine

Katz, Marshall & Banks partner Debra S. Katz and of counsel Justine F. Andronici published an article in Ms. Magazine entitled “Stall Tactics.” The article, published on May 1, 2008, discussed Sprint United Management Co. v. Mendelsohn, a Supreme Court decision which seriously eroded the rights of women workers.  The full-text of the article is available below.


by Debra S. Katz and Justine F. Andronici

Supreme Court further erodes workplace justice; will the Senate restore pay equity?

WITH TWO EXTREMELY disappointing Supreme Court decisions in the past year, the rights of women workers have been seriously eroded.

The most recent blow to women’s rights at work came on February 26 when the Court issued an opinion in Sprint United Management Co. v. Mendelsohn, an age-discrimination case which has great significance for all types of discrimination claims, including sexual harassment. The question before the court was whether plaintiffs can bolster their claims of discrimination by introducing testimony from employees who suffered similar discrimination by other supervisors at the same company. That sort of testimony is derisively referred to as “me too” evidence. Sprint and other businesses want to bar this form of “circumstantial” evidence, which is often crucial to plaintiffs in establishing their cases.

Ellen Mendelsohn, a 51-year-old woman with a strong performance record and 16 years of seniority, was terminated from her Overland Park, Kan., job by telecom giant Sprint as part of a company-wide “reduction in force” (RIF). Noticing that many of those laid off during the RIF were older employees and believing she was targeted because of her age, Mendelsohn filed a lawsuit under the Age Discrimination in Employment Act, which protects workers over 40 years old.

At her trial, Mendelsohn’s lawyers sought to introduce testimony from five other older Sprint employees, each of whom were also laid off during the RIF. Those workers were prepared to testify that they were also subjected to age discrimination, which may have been a widespread problem at Sprint during that time. But the federal District Court refused to allow their testimony, and Mendelsohn lost her case. She appealed to the U.S. 10th Circuit Court of Appeals, which found that the testimony should not have been excluded. Sprint then appealed to the Supreme Court.

Rather than deciding this pivotally important case, though, the Court took the unusual step of sending it back to the District Court. In an opinion authored by Justice Clarence Thomas and joined by all the other justices, the Court dodged the question of whether other employee testimony should be permitted, saying only that the admissibility of such evidence should be determined on a case-by-case basis at the District Court level.

Not only will this decision affect age discrimination, but it may also make it extremely difficult to prove that sexual harassment or other forms of sex discrimination have occurred. In order to prevail in court, sexualharassment plaintiffs must often build their cases through circumstantial evidence, such as testimony from other employees. This is especially true with sexual harassment, since it often occurs behind closed doors where others are unlikely to witness the offending conduct.

The Court could have helped protect discrimination plaintiffs by declaring that other employee testimony is almost always relevant in discrimination cases. Instead, the decision leaves the fate of discrimination plaintiffs subject to the whims of the increasingly conservative District Court judiciary.

In the other disappointing discrimination decision of the past year, Ledbetter v. Goodyear Tire & Rubber Co. Inc. (see Ms., Summer 2007), the Supreme Court drastically eroded the right to sue for pay discrimination by limiting the time in which one can file a wage-discrimination claim to just 180 days from the most recent discriminatory pay decision. The decision leaves most victims of wage discrimination out in the cold, since often employees have no idea that they are earning less than their counterparts until years after they are hired. The Ledbetter decision was such a departure from the spirit of Title VII of the 1964 Civil Rights Act that it prompted Justice Ruth Bader Ginsburg, in her dissent, to take the unusual step of calling upon Congress to step in and fix the problem.

So, Rep. George Miller (D-Calif.) introduced the Lilly Ledbetter Fair Pay Act (H.R. 2831) last June to reverse the decision, and the next month Sen. Edward Kennedy (DMass.) introduced the Fair Pay Restoration Act (S 1843). Introducing the Senate bill, Kennedy noted, “The Supreme Court’s ruling defies both Congress’ intent and common sense.” The House bill easily passed in July, but as of this writing the Senate version has remained stalled in the Committee on Health, Education, Labor and Pensions. The Senate committee didn’t even hold hearings on the legislation—which included testimony from staunch advocate Lilly Ledbetter—until six months after the House bill passed.

Business interests, including the powerful U.S. Chamber of Commerce, have lined up solidly against the legislation. The Bush administration has also weighed in, warning that if it passes, the president will veto the legislation.

But it’s time for Congress to stop quaking under the threat of a presidential veto. For employees facing wage discrimination, now is the time for the Senate to act.

To let your senator know you support passage of the Fair Pay Restoration Act, go to www.feministmajority.org/ledbetter!

Justine Andronici is an associate with Katz, Marshall & Banks, LLP, a Washington, D.C.-based civil rights law firm specializing in employment discrimination. Debra S. Katz is a partner with Katz, Marshall & Banks.