When employees file age-discrimination lawsuits, their lawyers may try to bolster the case by seeking out co-workers who have the same complaint.
Until recently, courts applied the “same supervisor” rule to co-worker testimony. That means the co-worker’s testimony was only relevant if he or she shared the same supervisor with the plaintiff.
But now, a federal appeals court has thrown out that rule, allowing employees from anywhere in the company to testify if the alleged age discrimination was companywide. (In a large organization, it probably isn’t hard to find several other employees who think they’re being discriminated against due to age.)
The upshot: Employers should be prepared with companywide stats that show older workers were NOT disproportionately affected by RIFs or other employment decisions.
Recent case: When Ellen Mendelsohn sued Sprint for age discrimination, she tried to get five post-40 co-workers to testify that they, too, were selected for termination due to age.
A lower court said the five couldn’t testify because they didn’t have the same supervisor as Mendelsohn. But the 10th Circuit ordered a new trial complete with the co-worker testimony. It reasoned that since she claimed a companywide policy targeted older employees for the RIF, testimony from other co-workers was relevant. (Mendelsohn v. Sprint/United Company, No. 05-3150, 10th Cir., 2006)
Online resource: For more information on complying with the federal Age Discrimination in Employment Act—including the law’s relation to want-ads, benefits, pre-employment testing and lawsuit waivers—go to the Age Discrimination section of the EEOC’s Web site at www.eeoc.gov/types/age.html.
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