California Supreme Court Expands Plaintiff's Use of “Stray Remarks” in Employment Cases
In Reid v. Google, Inc., the California Supreme Court recently expanded the ability of plaintiffs to use so-called “stray remarks” in employment discrimination cases brought under California law.
Under the “stray remarks” doctrine, employers have been able to defeat discrimination claims where plaintiffs have attempted to prove discrimination based on alleged discriminatory comments that are not tied to a specific employment decision. Typically, comments that were not made by the person who made the employment decision or were too remote in nature were deemed “stray” and thus insufficient to prove that an employer acted with a discriminatory intent.
In Reid, the plaintiff was a 52-year-old who was hired by Google as the Director of Operations and Director of Engineering. He claimed that despite receiving a good first-year performance review, he was soon removed from his position as Director of Operations and ultimately terminated based on his age. Although Google claimed that it terminated the plaintiff because it was eliminating his position, the plaintiff claimed that he was told he was being terminated due to a lack of "cultural fit."
After he was terminated, the plaintiff sued Google for age discrimination under the California Fair Employment and Housing Act (FEHA). As evidence of discrimination, the plaintiff claimed that he was replaced as Director of Operations by an employee who was 15 years his junior, and that other duties previously assigned to him were given to another employee who was 20 years younger than him. Also, the plaintiff alleged that he was essentially set up to fail when he was asked to implement certain education and a budget or staff to accomplish those tasks.
In addition to these allegations, the plaintiff claimed that numerous ageist remarks were made to or about him during his employment. The plaintiff argued that these comments proved that Google discriminated against him.
Many of the comments were allegedly made by a high-level manager who said the plaintiff’s opinions and ideas were “obsolete” and “too old to matter;” he was “slow,” “fuzzy,” “sluggish,” and “lethargic;” he did not “display a sense of urgency;” and he “lacked energy.” The plaintiff also claimed that co-workers joked about his age and referred to him as an “old man” and an “old fuddy-duddy.” It is unclear from the Reid opinion, however, which of these alleged comments, if any, were tied to the termination decision or any other decision that the plaintiff claimed was discriminatory.
The trial court rejected the plaintiff’s discrimination claims and granted Google’s motion for summary judgment. The trial court found Google’s evidence sufficient to establish that the company had a legitimate, non-discriminatory reason for terminating the plaintiff. Interestingly, the Reid decision does not discuss whether the trial court utilized the “stray remarks” doctrine in reaching its decision or otherwise considered any of the alleged discriminatory comments.
The Court of Appeal reversed the trial court’s decision and found that the plaintiff presented enough evidence to warrant a trial on the issue of whether Google harbored a discriminatory intent. Specifically, the Court of Appeal noted that the plaintiff presented statistical evidence and evidence that the company offered changing rationales for the termination decision. The appellate court also considered the allegedly discriminatory comments offered by the plaintiff to show discriminatory intent. Addressing the “stray remarks” doctrine, the Court of Appeal stated that judgments regarding use of such comments to prove discrimination must be made on a case-by-case basis in light of the entire record.
The California Supreme Court confirmed the Court of Appeal’s ruling. In its decision, the Court discussed the use of the “stray remarks” doctrine at length and recounted the history of the doctrine in prior case law. According to the Court, prior cases do not support wholesale exclusion of allegedly discriminatory remarks that might be deemed “stray.” Instead, the Court reasoned that allegedly discriminatory comments should be considered along with the totality of evidence in the record. The Court also stated that a strict application of the “stray remarks” doctrine would be contrary to the summary judgment statute that requires the court to consider all evidence presented and all inferences reasonably deducible from the evidence. Applying these principles to the Reid case, the Court found that the plaintiff provided sufficient evidence of alleged discrimination to warrant a trial on his age discrimination claims.
Although Reid limits use of the “stray remarks” doctrine, it does not appear to completely foreclose its use in California courts. Notably, the Reid Court observed, “a stray remark alone may not create a triable issue of age discrimination.” Thus, it appears that plaintiffs cannot avoid dismissal of their claims simply by relying on “stray remarks” to challenge the employer’s evidence that an employment decision was made for legitimate, non-discriminatory reasons. Instead, plaintiffs must still bring forth other evidence to show that the employer’s reasons were a pretext and the employer, in fact, made its decision based on impermissible discriminatory criteria.