The most difficult problem for victims of employment discrimination is proving the connection between the action and the discriminatory motive. With Title VII coming up on its 50th anniversary, it is not surprising that most people know not to make discriminatory comments out loud. (Okay, insert Dr. Laura joke here.) Many federal courts have made it more difficult by applying the “stray remarks” doctrine, under which discriminatory statements made by non-decisionmakers, or made by decisionmakers in another context, can’t be used to show that discrimination motivated a termination.
California rejected the automatic application of this rule in an age discrimination case against Google by an older worker told that he was no longer a “cultural fit” for the company.
“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.” In its analysis, the Court noted how strict application of the stray remark doctrine ignored the actual reasoning of the Supreme Court decisions discussing their use. The use of stray remarks, together with other evidence, can add up to inferences of discrimination. The jury should decide whether these statements indicate that the decision was infected by a discriminatory attitude.
In its analysis, the Court adopts the “cat’s-paw” theory, that the Supreme Court is expected to address this coming Term. “ The stray remarks doctrine contains a major flaw because discriminatory remarks by a non-decisionmaking employee can influence a decision maker.” The decision’s comparison of many cases proves the point well: different courts reach opposite conclusions on whether certain remarks, like “old fart” or “grey hair” imply an ageist attitude.
California trends are often adopted elsewhere in time, although the cases can be laughed at when they come out. This well-reasoned opinion should be followed so that plaintiffs get the trier of fact to determine the meaning, in context, of comments that sound like discrimination.