California Rejects the “Stray Remarks Doctrine”

In investigations of alleged discrimination under California’s Fair Employment and Housing Act, workplace investigators frequently rely on standards enunciated by federal courts interpreting Title VII, as such standards often apply equally to cases brought under California’s Fair Employment and Housing Act. California courts have expressly recognized the overlap between the two statutory schemes and the appropriateness of relying on federal Title VII cases when considering FEHA claims. In some cases, however, California has considered and rejected the federal stray remarks doctrine. As a result, workplace investigators must be more wary of relying on federal authorities when determining whether discrimination has occurred.

The “Stray Remarks Doctrine”
The stray remarks doctrine was first coined by the U.S. Supreme Court in 1989 and has since been adopted and notably expanded by federal circuit courts. Under this doctrine, federal courts deem irrelevant any remarks made by non-decisionmaking coworkers and remarks made by decisionmaking supervisors outside of the decisional process of adverse employment decisions, and evidence of such stray remarks are insufficient to defeat summary judgment. Further, federal courts treat ambiguous comments as stray remarks because they do not sufficiently indicate discriminatory animus.

In Reid v. Google, the California Supreme Court rejected the “Stray Remarks Doctrine” and held that California courts must consider the totality of the evidence, including any relevant discriminatory remarks, in determining whether discrimination has occurred. This decision represents a significant divergence from the Federal Courts’ acceptance of the “Stray Remarks Doctrine” and creates impetus for California employers to make efforts to eliminate all inappropriate comments from the workplace.

Case Background
In 2002, Google hired Brian Reid, age 52, to be Google’s director of operations and director of engineering. Reid alleged that during his employment at Google, an executive to whom Reid occasionally reported, as well as other co-workers, made derogatory age-related remarks to him. According to Reid, the executive told him his opinions and ideas were “obsolete” and “too old to matter,” that he was “slow,” “fuzzy,” “sluggish,” and “lethargic,” and that he did not “display a sense of urgency” and “lack[ed] energy.” Other coworkers called Reid an “old man” and an “old fuddy-duddy,” and joked that Reid’s compact disc jewel case office placard should be an “LP” instead of a “CD.” Less than two years later, Google terminated Reid’s employment, stating that he was not a “cultural fit.” Reid then sued Google, alleging age discrimination and offering as evidence the comments that had been made to him. Google moved for summary judgment, arguing that the comments were stray remarks and thus insufficient to defeat the motion. The trial court granted Google’s motion, finding Plaintiff’s evidence insufficient to raise a triable issue. The Court of Appeal reversed, rejecting Google’s argument that the alleged ageist comments were stray remarks and finding them sufficient to create an inference of illegal discrimination.

The Supreme Court’s Decision
The California Supreme Court affirmed the decision of the Court of Appeal, holding that the comments made by Reid’s supervisors and coworkers should not be viewed in isolation as stray remarks, but instead should be considered with all the evidence in the record. The Court rejected the stray remarks doctrine for a number of reasons. First, the Court explained that strict application of the stray remarks doctrine would result in a court’s categorical exclusion of evidence even if the evidence was relevant. The Court noted that remarks not made directly in the context of an employment decision and remarks uttered by a non-decisionmaker may still be relevant circumstantial evidence of discrimination, particularly where a non-decisionmaker influences a decisionmaker. Second, strict application of the stray remarks doctrine would be contrary to the procedural rules codified by statute and adopted in California cases. Specifically, California law directs that at the summary judgment stage, courts “shall consider all of the evidence set forth in the papers and all inferences reasonably deducible from the evidence.” Third, while a stray remark alone may not create a triable issue of discrimination, when combined with other evidence of pretext, an otherwise stray remark may create evidence that is sufficient to defeat summary judgment. Fourth, because there is no precise definition of who is a decision maker or what constitutes a remark made “outside of the decisional process” in the employment context, federal courts have treated identical remarks inconsistently. Thus, the Court concluded, in a California employment discrimination case, the stray remarks doctrine is not to be applied and the court is to consider all alleged discriminatory comments.

What This Means for You
In California, even casual comments made by non-decisionmaking employees or ambiguous remarks made by decisionmakers outside of the decisionmaking process may be used as evidence of discrimination. Employers must take care to ensure that all employees are trained regarding proper conduct in the work place. This includes making sure that employees do not make improper and potentially discriminatory comments about another employee’s race, ethnicity, sex, gender, age, sexual orientation and the like. Even comments as seemingly innocuous as “lethargic” and “quick study” may be found to constitute evidence of age discrimination. Finally, you should ensure that all employment decisions are made based on objective qualifications that cannot be misinterpreted as potentially discriminatory.