On August 5, 2010, the California Supreme Court limited application of the "stray remarks" doctrine. The doctrine deals with potentially discriminatory statements that are unrelated to the decision complained of. For example, if an ageist remark is made by someone who had no involvement in the decision to terminate, is that remark somehow evidence that the decision was discriminatory?
Reid v. Google, Inc. (pdf) involved an age discrimination claim by Brian Reid, a former director of engineering, who worked at Google from 2002 to 2004. Reid was 52 at the time he was hired. He had a Ph.D. in computer science and had taught at Stanford (a private university with a decent reputation, despite having lost in football to the University of California in seven of the last eight years).
A review of Reid’s first year’s job performance was very positive, but contained the following language:
Adapting to Google culture is the primary task for the first year here. . . . [para.] Right or wrong, Google is simply different: Younger contributors, inexperienced first line managers, and the super fast pace are just a few examples of the environment.
In addition, according to Reid, a 38-year-old vice president who he sometimes reported to described his opinions as "obsolete" and "too old to matter" and described Reid as "slow," "fuzzy," "sluggish," and "lethargic." Reid also accused the VP of saying that Reid failed to "display a sense of urgency" and "lack[ed] energy." He claimed that other co-workers called him an "old man," "old guy," and "old fuddy-duddy." A co-worker also joked that Reid’s office placard, which had a picture of a compact disc, should instead show an LP.
A little over a year into his tenure, Reid was relieved of most of his duties and told to focus on developing in-house graduate degree and college recruitment programs (but without a budget or staff support). A few months later, when senior management was discussing whether to give Reid any bonus for 2003, one of Reid’s supervisors expressed the opinion that he should be treated "consistently with all similarly situated performers." That same supervisor suggested that Google should also offer Reid a severance package due to the risk of "a judge concluding that we acted harshly."
A month later, Google terminated Reid. Google said it told Reid that his job was eliminated because the company decided not to pursue the graduate degree program. Reid says he was told only that there was not a "cultural fit." Although he was given permission to pursue other positions in the company, e-mails between department heads indicated that doing so would not be productive. In one e-mail exchange, a department head asked to be prepped for her interview with Reid. She received a response advising her how to respond to particular inquiries and concluding that "[w]e’ll all agree on the job elimination angle."
I quote the specific comments at length for two reasons. One, they show how otherwise innocuous comments — the type made in many workplaces — can be used to support a discrimination claim. For example, is it really a problem to say that an employee age 40 or over did not "display a sense of urgency"? Second, the "stray remarks" doctrine was never well-defined and is best illustrated by example. Comments dismissed as "stray remarks" in one case have been treated as evidence of discrimination in others.
In Reid, Google argued that application of the stray remarks doctrine is an important tool for trial courts to dispose of unmeritorious cases on summary judgment. But the state supreme court disagreed, stating that deciding what weight to give the remarks was the jury’s responsibility. Instead, the court said that summary judgment determinations must be based "on the totality of the evidence, including any relevant discriminatory remarks."
Based on this decision, it will be harder for employers to obtain summary judgment. And, because a totality of the evidence test is really the absence of any test at all, it will be harder to predict how courts will treat particular situations.