BLAWG

Under the “stray remarks” doctrine, courts disregard discriminatory remarks not made in the context of an employment decision or uttered by a non-decisionmaker. For example, in deciding a motion for summary judgment in a wrongful termination case, a court would ignore discriminatory remarks (1) not made by the supervisor making the decision to terminate plaintiff, or (2) made by the decisionmaker, but not in the context of the decision to terminate plaintiff.

Today, in Reid v. Google, the California Supreme Court rejected the application of the “stray remarks” doctrine. In Reid, an employee alleged that he was discriminated against by his employer because of his age. In opposing a motion for summary judgment brought by his employer, the employee introduced statements of superiors and coworkers that he “lacked energy”; was “not a cultural fit”; and was “slow,” “fuzzy,” “sluggish,” “lethargic” and “an old man.” Despite these comments, the trial court granted summary judgment in favor of the employer.

The California Supreme Court criticized the “stray remarks” doctrine for numerous reasons, ranging from the fact that it yields inconsistent results to the fact that it improperly allows trial courts to determine the weight of discriminatory or ambiguous remarks—“a role reserved for the jury.” Ultimately, the Reid Court concluded that stray remarks can be evidence of discriminatory intent and that the trial court should have decided the summary judgment motion based on the totality of the evidence in the record, including the stray remarks.

The Reid decision presents a significant obstacle for employers seeking summary judgment in employment discrimination cases involving “stray remarks.”