Monday, August 9, 2010

California court declares open season on stray workplace remarks

Traditionally, an employee cannot use stray remarks in the workplace to prove discrimination. Under the stray remarks doctrine, courts deem irrelevant any remarks made by non-decisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process. For more than 20 years employers have successfully avoided liability for crude and even discriminatory remarks made employees not involved in a decision to fire or demote, and for comments that are remote in time from the adverse employment action.

Reid v. Google [pdf]—decided last week by the California Supreme Court—has tossed this long-standing doctrine on its head. The Reid court flatly rejected the stray remarks doctrine in an age discrimination case. Briefly, Brian Reid, a former Google senior executive, claimed that the company discriminated against him because of his age when it terminated his employment. In support of this claim, he pointed to three key pieces of evidence:

  1. Statements by one supervisor that Reid was slow, fuzzy, sluggish, lethargic, did not display a sense of urgency, lacked energy, and that his ideas were obsolete and too old to matter.
  2. Statements by another supervisor near the time of the termination that Reid was not a good “cultural fit.”
  3. Coworkers’ comments calling Reid an old man and an old fuddy-duddy, and a joke that his office placard should be an LP instead of a CD.

The court rejected a strict application of the stray remarks doctrine, concluding that it “would result in a court’s categorical exclusion of evidence even if the evidence was relevant…. An age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination.”

One case does not make a trend. Plus, if there’s one thing I learned in law school it’s that California is legal la-la land, where white is often black and black is often white. For the sake of employers, I hope this is the case with the stray remarks doctrine. Certainly, plaintiffs all over the country will use the Reid decision to argue against summary judgment in cases in which there are stray remarks. It will bear watching to see how federal courts and states other than California react to Reid. Reid can either be an anomaly in a sea of stray remarks, or a sea change in how courts rule on summary judgment in employment cases. The latter will have a catastrophic effect on employers’ ability to defend themselves against discrimination claims. It’s hard to find a workplace in which stray remarks don’t exist. If Reid becomes doctrine, it will be hard to find a discrimination case in which an employer will be able to withstand summary judgment.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or

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