The California Supreme Court has restricted, if not eliminated the "stray remarks doctrine," one of the most common defenses employers rely upon in workplace discrimination cases. The ruling erects another significant barrier to keeping tenuous discrimination claims from proceeding to trial.
August 6, 2010
The California Supreme Court on Thursday issued a unanimous opinion that restricts, if not eliminates, one of the most common defenses employers rely upon in workplace discrimination cases.
The decision in Reid v. Google, Inc., 2010 WL 3034803 (Aug. 5, 2010 Cal. S. Ct.), establishes that California courts may not continue to apply the “stray remarks doctrine,” which holds that isolated discriminatory remarks made by employees who have no role in personnel decision making or by supervisors who were not involved in the decision making process as it relates to the plaintiff cannot be used to prove discriminatory intent by the employer. The ruling erects another significant barrier to keeping tenuous discrimination cases from proceeding to trial.
Not a “Cultural Fit”
Brian Reid was hired by Google in 2002 at the age of 52. During his nearly two-year tenure with the company, Reid received only positive performance evaluations praising his abilities but he was nonetheless advised of his need to adapt to the “Google culture.” Reid claims he was repeatedly subjected to derogatory comments about his age, including comments by one high-level Google employee that said Reid was “slow,” “fuzzy,” “sluggish,” “lethargic” and “lack[ed] energy.” Other co-workers allegedly referred to Reid as “old man,” “old guy” and “old fuddy-duddy,” and made other comments to suggest his technical knowledge was outdated.
After approximately 16 months at Google, Reid was removed from his position and placed in a newly-created role. However, within four months of assuming the new position, Reid’s employment was terminated because, according to Google, he was not a “cultural fit.” Google also argued that it had eliminated the new position into which Reid had been moved. Reid filed a lawsuit alleging age discrimination under California’s anti-discrimination law, the Fair Employment and Housing Act ("FEHA"), asserting that the company’s stated reasons for the termination were mere pretext and that the real reason for his termination was his age.
The trial court granted Google’s motion for summary judgment, dismissing Reid’s claims for lack of evidentiary support. The trial court reached this conclusion in part relying on the “stray remarks doctrine” to the effect that the age-related comments made by Reid’s co-workers were insufficient to create a triable issue of fact concerning Google’s motivation for Reid’s dismissal. The Court of Appeal overturned the trial court, finding that the trial court erred in applying the “stray remarks doctrine.”
“Stray,” But Taken in Context
In its argument before the Supreme Court, Google contended that the “stray remarks doctrine” permits a trial court to disregard “stray remarks” when considering a defendant’s summary judgment motion. Google argued that such evidence is extraneous to the alleged discriminatory act, and should therefore not be considered in order to ensure that cases built primarily upon stray remarks are disposed of before trial.
The Court disagreed and pointed out the “major flaw” in the “stray remarks doctrine” that discriminatory comments by a non-decision-maker can indeed influence the person ultimately making the decision. It therefore concluded that “an [discriminatory] 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.”
The Court’s holding signifies that California courts may no longer disregard stray remarks, but rather must consider such comments in the context of other evidence of discrimination. The Court observed that stray remarks, even though they may have little probative value when viewed in isolation, may help corroborate direct evidence of discrimination, or may gain significance when viewed in conjunction with other circumstantial evidence. Thus, the decision affirms the principle that stray remarks, in and of themselves, cannot support a claim under the FEHA, but emphasizes that trial courts must review all of the evidence in the record, including stray remarks, before ruling on a summary judgment motion.
The obvious effect of the Court’s decision is that California employers now face a considerably more difficult task attempting to get discrimination cases dismissed at the summary judgment stage. However, since the Court did not provide guidance on the weight that should be given to stray remarks, employers defending against discrimination claims in California courts may still be able to marginalize the significance of the evidence. Employers are well advised to address, in their summary judgment motion, any discriminatory stray remarks by emphasizing their remoteness in time and inconsequentiality to the challenged personnel decision.
Further, because summary judgment will now become comparatively more difficult to obtain, employers should revisit the option of entering into arbitration agreements with their employees – in the past, some employers have been reluctant to opt for arbitration on the theory that judges are usually more likely to grant a pre-trial dismissal than is the typical arbitrator.
Finally, employers should consider providing more sensitivity and anti-harassment training to an even broader cross section of their workforce with the goal of eliminating stray remarks before they’re ever made.