In a major appellate decision, the court ruled that “stray remarks” can be used as evidence to support discrimination cases. On August 5, 2010, the California Supreme Court overturned a decision in an age discrimination case previously decided in Google’s favor at the trial court level. The trial court dismissed the case finding that the plaintiff’s evidence of “stray remarks” by non-decision-makers, was not enough evidence of discrimination so as to support a trial on the merits. On appeal, the Supreme Court disagreed with the lower court and rejected the strict application of the stray remarks doctrine as a defense in California discrimination cases.
Under the stray remarks doctrine, evidence offered by a plaintiff that a co-worker or a non-decision-maker made discriminatory remarks will not defeat an employer’s motion for summary judgment. For example, in a case alleging age discrimination, the employer may file a motion for summary judgment arguing that plaintiff’s termination was the result of poor performance and not on account of age. The plaintiff may try to defeat the motion by presenting evidence that co-workers or a supervisor not involved in termination made ageist comments in the workplace. Under the stray remarks doctrine, this evidence would be inadmissible because it is not relevant to establish discriminatory animus on the part of those actually involved in the decision to terminate. Thus, this evidence alone would not be enough to defeat summary judgment and the case would not proceed to trial.
However, in this new case, the California Supreme Court held that evidence of stray remarks is now admissible and must be considered along with the totality of the facts and inferences to be drawn from those facts, in determining whether the plaintiff has presented sufficient evidence of discrimination to go to trial. This, of course, makes it more difficult for employers to have cases against them dismissed before going to trial.
In Reid v. Google, the plaintiff offered evidence that his superiors said that he was not a “cultural fit,” that his ideas were “obsolete,” and that he was “slow,” “fuzzy,” “lethargic,” and did not display a “sense of urgency.” Plaintiff also offered stray remarks evidence that his co-workers allegedly called him an “old man” and “old fuddy duddy” on some occasions. Although there was a lack of evidence tying any of these alleged remarks to the termination decision itself or to those responsible for making the decision, the Court held that this evidence, combined with other evidence, was admissible and the case could proceed to trial.
Because stray remarks from non-decision-makers may now be considered for purposes of defeating motions for summary judgment, it is reasonable to predict that more employment discrimination cases will proceed to trial rather than get thrown out at the pre-trial stage. Employers and HR personnel should be diligent in their efforts to foster a work place environment that his free of such potentially discriminatory remarks. At a minimum, employers should make sure they are current on their discrimination and harassment prevention training.
This article is intended for informational purposes only. Nothing herein should be construed to constitute legal advice. It is recommended that you seek legal counsel before making decisions regarding labor and employment matters.