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California Supreme Court Expands Potential Employer Liability For “Stray Remarks”


 On August 5, 2010, the California Supreme Court issued its ruling in Reid v. Google, Inc., 2010 WL 3034803, rejecting application of the “stray remarks” doctrine in California employment discrimination cases. Under this doctrine, several federal courts have disregarded remarks by non-decisionmaking coworkers and remarks made by decisionmaking supervisors outside of the decisional process as irrelevant.

In Reid, the 54-year old employee was terminated after the employer determined that he was not a “cultural fit.” Throughout his employment, the employee was subjected to numerous comments by non-decisionmakers that he was “slow,” “fuzzy,” “sluggish,” “lethargic,” failed to“display a sense of urgency,” “lacked energy,” had “obsolete” ideas, and was “too old to matter.” Coworkers also referred to him as “an old man,” called him an “old fuddy-duddy,” and joked that his office “placard” should be an “LP” instead of a “CD.”

The employee filed an age discrimination lawsuit against his employer, which was dismissed on motion based on the trial judge’s application of the stray remarks doctrine. The appellate court, however, reversed the trial court’s decision and held that the stray remarks by non-decisionmakers was admissible evidence of discrimination on summary judgment.

The California Supreme Court agreed and determined that evidence of stray remarks, even if made by non-decisionmakers or outside of the decisionmaking process, could be sufficient evidence of  discrimination. The high court reasoned that stray remarks (1) could be circumstantial evidence of discrimination, (2) when combined with other evidence of pretext, may create an “ensemble” capable of demonstrating discrimination, and (3) may influence a decisionmaker even when made by a non-decisionmaker. In addition, the court noted that its decision fell in line with the procedural rules of summary judgment directing courts to consider all evidence presented.

The ruling in Reid creates a significant obstacle for employers who seek to dispose of frivolous claims through the summary judgment process. While Reid does not hold that evidence of stray remarks will always defeat summary judgment, it allows courts to consider such remarks, along with other evidence, in determining whether the plaintiff has presented sufficient evidence of discrimination for a jury to decide. Employers should thus implement or continue to enforce policies prohibiting all employees from making potentially discriminatory remarks or jokes, as comments by virtually any employee can be taken out of context and could potentially be used against the employer in subsequent litigation.

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