On Thursday, a unanimous California Supreme Court ruled that Brian Reid is entitled to a trial on his claim that Google fired him for being old. In making that decision, the court helped all California employees by making it easier for them meet the greatest challenge in discrimination cases: proving that discrimination motivated the employer, and that the stated reasons for an action were merely pretexts.

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:
"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.'"
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
"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.'
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.

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.

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moonskyhigh

"WELLS FARGO BANK IS STEALING MONEY FROM THIRD PARTY CHECKING ACCOUNTS WITHOUT "AUTHORIZATION". IF ANYONE OWNS ANY LOAN TO THIS BANK PLEASE "DO NOT GIVE YOUR CHECKING ACCOUNT NUMBER. ONCE THEY HAVE YOUR CHECKING ACCOUNT NUMBERS, THEY WILL TRY THEIR BEST TO WITHDRAW FROM THIRD PARTY OR YOUR ACCOUNT WITHOUT AUTHORIZATION. I WILL SAY THEY ARE WORST THAN POOR CONSUMERS. OTHERWORDS, THIEVES.

BANK SYSTEM WORKS THIS WAY.... IF ANYONE KNOWS ANYBODY CHECKING ACCOUNT NUMBER , YOU CAN WITHDRAW ANY AMOUNT OF MONEY FROM ANY CHECKING ACCOUNT HOLDERS.. THIS IS BANK SYSTEM, THEY WILL PAY FIRST AND YOU NEED CLAIM TO THE BANK. RIDICULOUS !

ACCORDING TO BANK OF AMERICA CUSTOMER SERVICE NMANNAGER TOLD ME THAT, DON'T WRITE CHECK , DON'T USE ATM CARD AND "ONLY USE "CASHIERS CHECK TO PAY THE BILL. OTHERWISE NOT SAFE AND EVEN HIMSELF LOST MONEY.

MONTH AGO I AUTHORIZED WELLS FARGO BANK TO WITHDRAW $$$$$$$ ONLY "ONCE" BUT, THEY ARE TRYING TO WITHDRAW MORE MONEY FROM THRID PARTY CHECKING ACCOUNT WITHPOUT AUTHORIZATION AGAN. THIS IS REAL THIEF.

NEVER EVER GIVE ANY CHECKING ACCOUNT NUMBERS TO ANY BANK IN USA. WE NO LONGER CAN TRUST ANY USA BANKS. NOW I UNDERSTAND WHY MANY FOREIGNERS ARE WITHDRAWING THEIR LARGER AMOUNT OF MONEY TO TRUSTBLE SWISS BANK OR SOME OTHER BANKS IN OVERSEAS..
MOST OF USA BANKS ARE 'LICENSED MAFIA". ALL SCAM START FROM USA BANKS FIRST. WATCH OUT ! MOST OF THEM THEY ARE OPEN EYES THIEF IN THIS RECESSION..

August 07 2010 at 3:09 AM Report abuse rate up rate down Reply
1 reply to moonskyhigh's comment
bob

very dangerous remarks,bordering on lawsuit material,especially when you consider Wells Fargo IS ONE OF THE GREATEST COMPANYS EVER FORMED IN OUR COUNTRY,AND WHO WITHOUT OUR ENTIRE ECONOMY COULD HAVE CRASHED.........I GUESS i BE CAREFUL WHAT YOU SAY ON LINE.................RD1064@AOL.COM

August 07 2010 at 5:49 PM Report abuse rate up rate down Reply
Meadhh

Finally age discrimination out in the open. Companies will not hire over 50 year old applicants. They use the excuse, too experienced, over educated for the position or thank you, we will keep your application on file or we are still interviewing other applicants and have not made a decision. AGE DISCRIMINATION IS PREVENTING HIRING AND COMPANIES ALWAYS LAY OFF THE OLDER BEFORE THE YOUNGER. WHY, BECAUSE OLDER GOT PAID MORE THAN YOUNGER, SO YOUNGER WILL WORK FOR LESS PAY.

August 06 2010 at 4:38 PM Report abuse +1 rate up rate down Reply
1 reply to Meadhh's comment
Hoss

Not true meadhh. I was hired at the age of 72 for a Engineering firm. Love the job and the Company. I was laid off after 2 years because of lack of work. Now because older workers get paid more. They go first. True. Then the question is: . Do Companies have a right to save money? I say yes. They are not firing them because they are old. Beside the law is unconstitutial

August 07 2010 at 9:16 AM Report abuse rate up rate down Reply