Employers Beware: Several Recent Rulings Provide More Expansive Protections for Employees Claiming Discrimination

March 1, 2008

In three recent important rulings, the courts have found that "me too" evidence may be admissible in discrimination actions; staring at female body parts may constitute harassment; and a charge of discrimination does not require formality.  

Ruling unanimously, the United States Supreme Court held, on February 26, 2008, there is no per se rule barring the admissibility of so-called "me too" evidence of discrimination.  In Sprint/United Management Company v. Mendelsohn, the plaintiff claimed that her selection for termination in a reduction-in-force was motivated by age discrimination.  At trial, she sought to introduce testimony from five witnesses, who claimed to have also suffered age discrimination.  Declining to say whether this evidence should have been admitted or excluded, the Supreme Court held that it was for the trial court, in the first instance, to decide on the admissibility of the evidence and that each case needed to stand on its own unique facts. 

In another case of precedential value, the United States Court of Appeals for the First Circuit held, on February 7, 2008, that a plaintiff’s claim that her manager consistently stared at her breasts, was sufficient, on its own, to make out a harassment claim.  Employers frequently defend harassment claims by arguing that the offensive conduct, even if true, was not sufficiently severe and pervasive to be actionable.  In Billings v. Town of Grafton, the First Circuit took an expansive view of the legal standard, holding that a hostile work environment need not include touching, sexual advances, or overtly sexual comments.

On February 27, 2008, the United States Supreme Court, ruling 7-2, clarified what constitutes the filing of a "charge" of discrimination with the Equal Employment Opportunity Commission.  In Federal Express Corp. v. Holowecki, the Supreme Court held that a "charge" was any document that could reasonably be construed as a request for the agency to take action to vindicate the employee’s rights. 

Other pending developments:           

  • The Department of Labor has published proposed changes to the regulations implementing the Family and Medical Leave Act, with comments accepted until April 11, 2008.  The proposed changes include clarification of issues around the meaning of a "serious health condition" and medical certification requirements.  It is anticipated that any final regulations will be promulgated before President Bush leaves office. 
  • The Massachusetts Attorney General has issued a proposed advisory on the Massachusetts Independent Contractor Law. Emphasizing that "the need for proper classification" of workers remains of "paramount importance, the advisory provides guidance on factors that are "strong indications of misclassification," such as performing work that is the same as work regularly undertaken by employees.     

This alert was prepared by Laurie Rubin a partner in Prince Lobel’s Employment Group. For more information about these decisions, please contact Laurie at 617 456 8020 or

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