Court Rejects ‘Stray Remarks’ Doctrine in Google Ageism Case

August 6, 2010 ( – The California Supreme Court has handed employers a legal setback by ruling that Golden State judges can consider comments made by non-corporate decisionmakers outside the personnel process when disposing of workplace discrimination cases.

The state high court issued the decision endorsing the use of “stray remarks” as it upheld a lower appellate court’s holding in plaintiff Brian Reid’s July 2004 lawsuit against Gogle. The lower appellate court reversed a California trial judge’s decision to throw out Reid’s case that had alleged the computer giant’s youthful culture and deriding comments directed at him by co-workers constituted age discrimination (see CA Court Reinstates Google Ageism Suit).   

Justice Ming Chin, writing for the high court, declared that completely ignoring remarks made by those not directly involved in hiring/firing decisions could produce an unfair result.

“Although stray remarks may not have strong probative value when viewed in isolation, they may corroborate direct evidence of discrimination or gain significance in conjunction with other circumstantial evidence,” Chin wrote. “Certainly, who made the comments, when they were made in relation to the adverse employment decision, and in what context they were made are all factors that should be considered.”

Chin explained in her 46-page ruling that the “stray remarks” doctrine comes from federal law and holds that offhand comments made by co-workers who are not corporate decisionmakers and those made by supervisors not directly involved in the adverse hiring or firing decision being complained about are to be considered irrelevant. Further, federal law holds, such remarks are not legally strong enough to withstand a request for a discrimination case to be thrown out before trial.

The “stray remarks” term first showed up in a 1989 U.S. Supreme Court opinion written by former Justice Sandra Day O’Connor in a gender discrimination case involving the PriceWaterhouse accounting firm, Chin pointed out.

In appealing the October 2007 decision by the California 6 th District Court of Appeal in Reid’s favor, Google had argued that the state’s high court should adopt the federal “stray remarks” standard “so that California courts can disregard discriminatory comments by co-workers and nondecisionmakers, or comments unrelated to the employment decision―to ensure that unmeritorious cases principally supported by such remarks are disposed of before trial.” 

However Chin pointed out a number of problems with Google’s suggested approach, including that:

  • “strict application of the stray remarks doctrine, as urged by Google, would result in a court‘s categorical exclusion of evidence even if the evidence was relevant. 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."
  • federal circuit courts have diverged in determining what constitutes a stray remark, because there is no precise definition of who is a decisionmaker or what constitutes remarks made outside of the decisional process in the employment context; and
  • the federal courts have also disagreed about how close in time the discriminatory remark must be to the unfavorable employment decision to categorize it as stray. Some courts have permitted evidence of comments made years before the adverse employment decision, while others have disregarded remarks made just months before the decision.

Reid claimed fellow workers and managers made cracks about his age -- he was 52 when he was hired in 2002 -- calling him obsolete and an old fuddy-duddy and saying that he lacked new ideas, among other things. On his firing, Reid claimed he was told he was no longer a “cultural fit” at Google.

The California Supreme Court ruling is at .