STANDARDS FOR EVIDENCE, EEOC CHARGES LEFT TO LOWER COURTS

Considering that the Supreme Court's two most recent appointments are conservatives-Chief Justice John Roberts Jr. and Justice Samuel Alito Jr.-the corporate community was hoping for a consistently sympathetic bench.

What it

But just as often, the court avoids drawing bright-line distinctions or setting standards because doing so would read too much into the law. On consecutive days in late February, such an approach produced rulings that could be seen as victories for employees.

In a case involving age discrimination against a Sprint worker who lost her job in a companywide downsizing, the court did not indicate whether evidence she wanted to present from co-workers was admissible. A district court did not allow Ellen Mendelsohn's colleagues to testify because they reported to a different supervisor than she did.

The Supreme Court overturned an appeals court that said the evidence should be allowed and sent the case back to the trial court for a better explanation of why it was excluded.

Although that was the result Sprint sought, the high court's ruling left the door open for so-called "me too" evidence to be used in some circumstances if it is deemed relevant by a trial court.

Such testimony 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," Justice Clarence Thomas wrote in the unanimous opinion.

Businesses oppose me-too testimony, arguing it is irrelevant and can make litigation more prolonged and costly by creating trials-within-trials on the veracity of each discrimination claim. Supporters say that me-too evidence can substantiate bias that transcends one supervisor and is part of a company culture.

The Supreme Court ruled that either side may be correct.

"I was disappointed to see them come down and say there's just not an answer," says Will Deveney, a partner at Elarbee Thompson in Atlanta.

In another late February decision, the court reached essentially the same conclusion. In a 7-2 decision, it said an age discrimination case could proceed against FedEx even though a formal charge hadn't been filed because of a mistake by an Equal Employment Opportunity Commission field office.

A charge could be construed as any request by a complainant for the EEOC to take action against a company, according to the court. Businesses wanted to set a higher bar that could lead to cases being summarily dismissed.

But the court held that the statute and its legislative history called for more generosity toward potential plaintiffs-an ultimately conservative way of interpreting the law.

"These are going to be carefully thought-out decisions," says Sarah Kelly, a partner at Cozen O'Connor in Philadelphia. "Roberts would want to lead a court that is not viewed as activist in either political direction."

-Mark Schoeff Jr.