What are Stray Remarks and How Are They Used in Discrimination Cases?
In Reid v. Google, the California Supreme Court addressed the kinds of evidence an employee may rely upon to prove discrimination in a lawsuit. In this 2010 decision, the Court addressed the so-called “stray remarks doctrine.”
Justice Sandra Day O’Connor coined the term in 1989 in a landmark U.S. Supreme Court decision. She wrote that “stray remarks” made by “non-decisionmaking coworkers or remarks made by decision making supervisors outside of the decisional process” are insufficient evidence of an employer’s discriminatory attitude. “Without additional evidence of discrimination,” she wrote, “a gender discrimination claim can be and should be dismissed by the court before trial.” Although stay remarks might be evidence of a discriminatory attitude they are not enough to carry the plaintiff to victory in a lawsuit.
The Origins of the Stray Remarks Doctrine
In the Justice O’Connor decision in Price Waterhouse v. Hopkins (1989) 490 U.S. 228, the worker introduced evidence that a partner of the accounting firm told her to “walk more femininely,” “talk more femininely,” “dress more femininely,” “wear make-up,” “have her hair styled,” and “wear jewelry” to improve her chances for partnership. Justice O’Connor concluded that though such “stray remarks” might constitute evidence of a discriminatory attitude in the workplace, they are not sufficient evidence of discrimination on their own. Evidence of stray remarks evidence can support a discrimination claim, however, when combined with more direct evidence of discrimination.
Federal courts have addressed the stay remarks doctrine on several occasions since 1989. For instance, in Hill v. Lockheed Martin, the Fourth Circuit Court of Appeals ruled that stray remarks by someone other than the decision makers, including that the worker was a “useless old lady” “who needed to retire” and was a “troubled old lady,” did not influence the process directly. Consequently, the court ruled that the stay remarks were completely irrelevant.
California Sides with Workers on the Stay Remarks Issue
In its 2010 decision, the Supreme Court said that the rejection of evidence of stray remarks is not appropriate in California. Such evidence, it wrote, tends to show discriminatory attitudes in the workplace. Therefore, under California law, stray remarks are relevant and cannot be completely ignored by the trial courts.
Although a racial, sexual or age-based slur might not conclusively demonstrate employment discrimination, such stray remarks combined with other more direct evidence of discrimination (statistics, testimony, emails and the like) can be used to defeat a defendant’s motion for summary judgment before trial.
The California Supreme Court explained that,
“[T]he stray remarks doctrine contains a major flaw because discriminatory remarks by a non-decisionmaking employee can influence a decision maker.”
Discriminatory comments by a worker who can influence the immediate decision makers provides evidence of discrimination by the employer.