Minimizing Liability under the Stray Remarks Doctrine

We’ve all had an occasional slip of the tongue, but saying something questionable at work could prove to have disastrous effects.  This is especially true when it comes to uttering discriminatory remarks about co-workers or future employees.  If an employee makes a side comment about sensitive issues like age or gender, it could lead to a potential discrimination lawsuit, according to the “stray remarks” doctrine.

Just what exactly is a “stray remark”?  And how can employers minimize liability under the doctrine?  Justice Sandra Day O’Connor coined the term “stray remarks” back in 1989 and the doctrine has since been used heavily in federal courts.  A stray remark is basically a discriminatory statement made by an employee who is not significantly involved in the hiring or firing process.  O’Connor wrote that discrimination cases can be dismissed if the only evidence being offered is based on stray remarks.

So suppose an employee sees someone walk in for an interview, and they make a side comment about the candidate’s age or nationality.  If the employee is not involved in the hiring process, then theoretically that stray remark should have no bearing on whether the candidate was discriminated against.  This is especially true if the discriminatory statements were made at a point in time far removed from the actual hiring decision.  In other words, courts hesitate to find a causal connection between a stray remark and an employer’s intent to discriminate.

However, this may all change with recent developments surrounding the stray remarks doctrine.  Last August, in Reid vs. Google, the California Supreme Court held that stray remarks can in fact be used as evidence to determine an employer’s intent, so long as they are combined with other evidence proving discriminatory intent.

In this case, 54 year-old Brian Reid entered in evidence that his co-workers had made references to his age, calling him “slow” and “fuzzy”, and that his input was “obsolete”.  Reid had also presented statistical data in addition to the stray remarks.  Thus, Google was not allowed to dismiss the case, and the stray remarks were entered in as evidence.

California’s decision to limit the stray remarks doctrine is monumental.  In the past, discrimination claims could be quickly dismissed if there were stray remarks being entered as evidence.  Now, California courts will likely have to hear more cases all the way through even if they make reference to stray remarks.   Further, a court can now combine the stray remark with other proof to determine an employer’s intent.  This is important because stray remarks tended to be discarded even if they were relevant to the claim.  (Bear in mind that this is only California- other districts may still apply the doctrine strictly, though there may be ripple effects across the nation).

When determining whether a statement is a stray remark or not, courts will consider several factors, including who made the remark, when the remark was made in relation to an important employment decision, and the context in which the remark was made.  In light of these factors, here are some steps that employers can take to minimize the impacts of stray remarks:

1.  Enforce Anti-Discrimination Policies more strictly

In light of the new ruling, employers should be sure that their workers are informed of the severe consequences involved when making discriminatory statements.  Stray remarks might prevent an unwanted person from being hired, but employees who make them can also lose their jobs.  Supervisors should provide avenues for employees to report instances of stray remarks being made, and they should provide strict enforcement so as to promote a non-discriminatory work environment.

2. Use information from a wide range of sources when making important decisions

Employers should not rely solely on the perceptions of co-workers when making important decisions such as whether to hire or fire someone.  Instead, they should use a variety of sources, so that they are well-informed about the candidate.  In a discrimination claim, courts will look to the overall context of the decision.  If the employer has done their own research on a person, it less likely that the court will conclude that the decision was based solely on a stray remark.

3.  Remove employees who have made stray remarks from the decision-making process

Employees or supervisors who make stray remarks should be reprimanded promptly under anti-discrimination policies.  Part of the enforcement should include preventing them from participating in hiring or firing decisions.  This will send the message that such statements will not be tolerated, nor will they be used to formulate a decision.  It will also make it more difficult to establish a causal connection between the remark and any intent to discriminate (although in California the remark could still be used in combination with other evidence).

Of these preventative measures, perhaps the most important is the first, which involves training employees not to make stray remarks in the first place.  Although employers cannot regulate their worker’s thoughts, employees should ideally be taught not to hold discriminatory outlooks in the first place.  That way, employers do not have to worry about employees accidentally slipping up in the workplace.

It’s probably too early to tell whether other states will adopt the same stance as California.  However, we all know that California can sometimes be on the forefront when it comes to implementing sweeping changes to the law.  If other states follow suit, then we should expect to see fewer discrimination cases being dismissed.  In the future, employers and employees would be wise to keep their strays on a leash.