This is part two of our series of blog posts about the strange events at the University of Tennessee. When our story last ended, Athletics Director Dave Hart had forced out a long time female employee of the University. She sued for, among other things, sex discrimination.
Other female employees who have worked for Mr. Hart are apparently willing to say, “Me too!” In other words, it may be that other female employees, both from Hart’s time at U.T. and during his previous posts at other schools, will claim they suffered discrimination at his hands.
So here’s the question for trial lawyers: can they testify?
Rule 404(b)(1) of the Federal Rules of Evidence says that you can’t tell the jury about other bad things that folks have done in order to show that the person is a bad guy. This is called inadmissible “character evidence.”
Rule 404(b)(2), however, says there is an exception. You can introduce “other act” evidence to show a person’s “intent.” In other words, the fact a person has discriminated against women in the past can be used to show that the person has a bias against females.
Courts have struggled with how far this can extend. In 2008, the United States Supreme Court weighed in. They handed down a decision called Sprint v. Mendelsohn. In Sprint, the defendant convinced the lower court to exclude evidence of “other acts” of discrimination because they involved a different supervisor than the plaintiff’s.
The Supreme Court disagreed. They looked at the lower court’s belief that “me too” evidence was only admissible if it involved discrimination from the same supervisor. The Supreme Court said that you can’t have such a hard and fast rule. Instead, there must be a “fact intensive, context-specific inquiry.”
Well, what does that mean for Dave Hart? It’s probably not good news for him. I don’t know the specifics of what other females are claiming. It may be that there is some reason to exclude their testimony at trial. However, the Supreme Court in Sprint held that “me too” evidence might come in even if it involved a different supervisor. Since Hart was apparently the supervisor of all the females who are now crying foul, it seems difficult to see how he could keep them from testifying.
Now, allow me some shameless self-promotion. A few years back, I wrote a law review article on this topic. See “Previous Acts of Employment Discrimination: Probative or Prejudicial?” 25 American Journal of Trial Advocacy 297 (2001).
Send me an email if anyone would like a copy of it. They make great drink coasters.