One particular type of evidence of discrimination has been hard for employees to use ever since Justice Sandra Day O'Connor's 1989 concurring opinion in PriceWaterhouse v. Hopkins: Namely "stray remarks" that suggest discrimination but are made outside the context of the challenged decision, usually, but not only, by coworkers without the ability to influence the decision-maker.
The California Supreme Court rejected the federal doctrine, developed out of O'Connor's opinion although not mandated by it, of categorically excluding "stray remarks." The justices decided that such remarks' evidentiary value could only be understood in the context of the other evidence presented in the case. In other words, sometimes stray remarks will help prove discrimination, and sometimes they won't. But they can't just be ignored from the outset.
What Do We Mean by 'Stray Remarks'?
The idea behind the stray remarks doctrine is that a company that had legitimate reasons for its actions shouldn't be held liable for the comments of employees who were unconnected to the challenged company decision. Because of the doctrine, employers had been able to exclude parts of employees' cases against them -- enough to win many cases on a summary judgment motion before a trial even occurred. That made employer advocates praise the stray remarks doctrine as a useful judicial tool for weeding out weak cases.
In rejecting the doctrine, the California Supreme Court noted that it could result in the exclusion of relevant evidence, conflicted with California procedural rules and related decisions, added little value because everyone agrees that a slur by itself isn't enough to prove discrimination, and as a practical matter, wasn't a clear test that produced consistent results.
Courts have disagreed widely on every element of the stray remarks analysis. For example, whose remarks can be counted as "stray"? (i.e: Who are the relevant decision-makers). How long before the employment decision do remarks have to be to count as stray? Are certain terms, such as "old fart," sufficiently neutral as to be stray? In addition, the court pointed out that in doing this sort of analysis at the summary judgment stage, the judges were weighing evidence the way a jury would, something they're not supposed to do.
The Google Case
Reid was 52 when he was hired by Google (GOOG) as director of operations and director of engineering. He worked there for about 18 months, during which he was demoted, and was fired in February 2004. The demotion came more than a year in, some time after his one formal performance review. At that review, Reid was rated as consistently meeting expectations, and received many laudatory comments, including:
Despite the positive review, the co-worker/supervisor (Reid says supervisor) who ultimately got Reid's job made derogatory ageist comments to and about him as frequently as every few weeks, according to Reid. The remarks included saying that Reid's"Reid 'project[ed] confidence when dealing with fast changing situations,' 'ha[d] an excellent attitude about what 'OPS' and 'Support' mean,' and was 'very intelligent,' 'creative,' 'a terrific problem solver,' and that the 'vast majority of Ops [ran] great.'"
Other workers apparently called Reid "old man," "old fuddy duddy," "old guy," and said "his knowledge was ancient." Finally, at or around the time of his termination Reid's supervisor told him that he was not a "cultural fit" at Google. (At Reid's review, the supervisor had discussed the youth culture of Google.) Google sought to exclude all of these age-related comments from evidence under the stray remarks doctrine."opinions and ideas were 'obsolete' and 'too old to matter,' that he was 'slow,' 'fuzzy,' 'sluggish,' and 'lethargic,' and that he did not 'display a sense of urgency' and 'lack[ed] energy.'
After rejecting the doctrine, the court set those comments in the context of Reid's other evidence. Reid offered statistical evidence of age discrimination at Google through an expert; an email relating to Reid's firing that hinted at age ("We are looking for a senior Director (note I did not capitalize Sr.) or VP level person to run this operation ..."); an email advising that Reid should be given a bonus "to avoid 'a judge deciding we had acted harshly'"; explanations that he was fired because he wasn't a "cultural fit"; shifting rationales for his firing; and a demotion to a "nonviable" position prior to his firing.
Based on all of the evidence, the court concluded that Reid had offered sufficient evidence of discrimination to warrant a trial, and affirmed the rejection of Google's summary judgment motion. Presumably, if Reid had offered significantly less evidence of discrimination, whether fewer remarks, less contextual evidence, or some combination thereof, the court would have given Google the win. California employees will still need real evidence to get to trial. But after this ruling, they won't be prevented from offering "stray remarks" as evidence to meet that burden.