Employment Law | Expert Legal Commentary
November 17, 2010
Reid v. Google: Stray Remarks May Be Considered Evidence of Discrimination
Brian Reid v. Google, Inc.
Jeremy Gray of Zuber Lawler & Del Duca
The California Supreme Court has unanimously held that courts must consider “stray remarks” made by non-decision-making employees together with all other admissible evidence in order to determine whether a discrimination lawsuit should survive summary judgment. In Brian Reid v. Google, Inc., 235 P.3d 988, 50 Cal. 4th 512 (Cal. 2010), the California Supreme Court rejected strict application of the “stray remarks doctrine,” under which some courts have deemed irrelevant and insufficient to defeat summary judgment, “stray” potentially discriminatory remarks made either by non-decision-making employees, or by decision-making supervisors outside of the decisional process. Reid will make it more difficult for employers to weed out frivolous discrimination cases through summary judgment. It will also require employers to revisit their training practices and policies to minimize “stray” remarks.
Google hired Brian Reid as director of operations and director of engineering when he was 52 years old. Reid only received one performance review, which was generally positive, though it did acknowledge Reid’s need to adapt to the Google “culture.”
Reid claims that during his employment period, other employees made disparaging comments to Reid about his age, including calling him “slow,” “fuzzy,” “sluggish,” and “lethargic.” Employees allegedly called Reid “old man,” “old guy,” and “old fuddy duddy,” calling his ideas “obsolete” and “too old to matter.” The list goes on.
In October 2003, Reid was removed from his director of operations position, and relieved of all responsibilities (though not his title) as director of operations. Employees 15 to 20 years younger than Reid assumed these roles. Reid was asked to develop an in-house graduate degree program and an undergraduate college recruiting program, though he was given no supporting staff or budget. Ultimately, he was terminated in February 2004 when the engineering department told him they no longer had a position for him.
Reid filed a lawsuit against Google in a California Superior Court alleging 12 causes of action, including age discrimination under California’s Fair Employment and Housing Act. The trial court granted Google’s motion for summary judgment, finding that Reid had failed to present sufficient evidence to raise a permissible inference that age was a motivating factor in Google’s decision to terminate him and that Google’s nondiscriminatory reasons for terminating him were pretextual.
The California Court of Appeal reversed the trial court. The Court of Appeals considered all evidence of discrimination, including statistics, the alleged stray remarks, and evidence about Reid’s demotion and termination. The Court of Appeals specifically held that the stray remarks by non-decision makers were admissible to held Reid prove his discrimination claim. Google had filed written objections on the statistical evidence and stray remarks in the trial court prior to the summary judgment ruling. Though the trial court had not ruled on those objections, the Court of Appeals held that those objections were not waived.
California Rejects Strict Application of the Stray Remarks Doctrine
The “stray remarks” doctrine allows a court that is considering a summary judgment motion to disregard isolated remarks or comments that were not directly related to the decision-making process in determining whether or not the plaintiff’s evidence of discrimination is sufficient to present triable issues of fact and survive summary judgment in a wrongful termination case. See, e.g., Hill v. Lockheed Martin Logistics Mgmt, Inc., 354 F.3d 277, 283, 295-296 (4th Cir. 2004).
The California Supreme Court affirmed the Court of Appeals holding in a unanimous opinion. The Court stated that strict adoption of the “stray remarks doctrine” “would result in a court’s categorical exclusion of evidence even if the evidence was relevant” because it could present circumstantial evidence of discrimination. Brian Reid v. Google, Inc., 235 P.3d 988, 50 Cal. 4th 512, 539 (Cal. 2010)
The Court held that trial courts must base summary judgment decisions on the “totality of evidence in the record, including any relevant discriminatory remarks.” Id. at 541. The Court stated that weak discrimination claims may still be “winnow[ed] out” on summary judgment if examination of the totality of the evidence requires it. Id.
The Court urged trial courts to consider the stray remarks doctrine as a “common-sense proposition,” noting that an isolated slur does not prove actionable discrimination. Id. However, a series of remarks, combined with other evidence of pretext, may together create an “ensemble” that is sufficient to defeat summary judgment. Id.The Court also agreed with the Court of Appeals on the issue of objections, holding that objections not specifically ruled on at the trial level are nevertheless preserved on appeal. Id. at 535.
IMPACT OF REID ON EMPLOYERS
The Reid decision does make it more difficult for employers to resolve meritless discrimination claims at the summary judgment level by allowing the employee to bring in random, out-of-context comments made at various times by non-decision-making employees that may have had nothing to do with the termination decision.
The best action for employers is a proactive one. In response to Reid, employers should revisit their policies prohibiting discrimination and harassment, making sure that those policies adequately address and prohibit potentially discriminatory comments by all employees. Employers should also consider conducting new training sessions with all employees on these non-discrimination policies, emphasizing the prohibition against “stray remarks” and the liability that may attach to such remarks. Finally, the employer should vigilantly enforce these policies, taking swift disciplinary action against any employee who violates them.
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