The concept of the “stray remarks doctrine” has really never made any sense whatsoever. It is a judicially created doctrine that has historically been used to attempt to circumvent and discount discriminatory statements made by an employer or an employer’s employees or agents. Courts – especially federal courts – have held that the “stray remarks doctrine” establishes that statements made by non-decision-makers or by decision-makers outside of the decision making process cannot be used to establish discriminatory intent. This is absurd when you think about it. Taken to the extreme – which courts have done – this means that discriminatory comments are simply antiseptically removed from the record. This is exactly what the trial court did in the age discrimination case of Reid v. Google, 50 Cal. 4th 512 (Aug. 5, 2010).
In upholding the Court of Appeals’ reversal of the trial court, the California Supreme Court reminded the lower courts that they not use the “stray remarks doctrine” to bar otherwise probative evidence of discrimination, and that the courts should remember that the jury is the trier of fact, not the judge.
This commonsense approach should help to restore an even-keeled and balanced approach to the determination of whether a decision made by an employer was discriminatory or not. As stated by the California Supreme Court, cases in California have considered discriminatory remarks “in totality with the other circumstances of the case.” Further, as is obvious, cases have noted that, “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.” Lastly, the Court thankfully permitted the introduction of statements made in the work place that the jury should be permitted to hear in this case, including comments that Mr. Reid was “obsolete…too old to matter…slow…fuzzy…sluggish…lethargic….and that he did not display a sense of urgency.” Thank goodness, the California Supreme Court decided that ageist statement can be considered in an age discrimination case!
Siegel & LeWitter