Hunton Employment & Labor Perspectives

It is very difficult to control everything employees say in the workplace, and to stamp out every inappropriate comment, particularly in a large workforce.  The reality is that out of place remarks happen all the time in the workplace, and every single improper comment cannot lead to legal liability for employers, or commerce would come to a complete stop.  Courts have recognized this reality and developed the “stray remarks” doctrine, which places appropriate focus on those inappropriate remarks that are made as part of an adverse employment action.  California recently declined to follow this doctrine, at least in the way other courts have.

In the recent Reid v. Google, Inc. decision, the California Supreme Court limited the application of the “stray remarks” doctrine and held that such comments cannot be “categorically” dismissed from consideration.  Fifty-two years old, Brian Reid joined Google as the company’s director of operations and director of engineering.  Every few weeks for the next two years, one of his supervisors allegedly made derogatory age-related comments to him, telling him that his ideas were “obsolete” and “too old to matter,” and that Reid was “slow,” “fuzzy,” “sluggish,” and “lack[ed] energy.”  Other coworkers allegedly referred to him as an “old man” and “old fuddy-duddy.”  Additionally, in his performance review, though he earned a rating that he “consistently [met] expectations,” another one of Reid’s supervisors commented: “Adapting to Google culture is the primary task for the first year here . . . . Right or wrong, Google is simply different: Younger contributors, inexperienced first line managers, and the super fast pace are just a few examples of the environment.” 

Google eventually terminated Reid.  Reid subsequently filed an age discrimination lawsuit against Google.  The trial court granted Google’s summary judgment motion, but the court of appeal reversed.  On appeal, Google argued that the inappropriate remarks referenced by Plaintiff were irrelevant because they were made by non-decision-makers, were ambiguous, and were unrelated to the adverse employment decision.  The California Supreme Court granted review to decide whether to adopt the “stray remarks doctrine” which “deem[s] irrelevant any remarks made by non-decision-making coworkers or remarks made by decision-making supervisors outside of the decisional process.”  The court decided not to adopt the doctrine and instead held that California courts may not categorically dismiss “stray remarks” from consideration.  It further held that “a trial court must review and base its summary judgment determination on the totality of the evidence in record, including any relevant discriminatory remarks.” 

Even after the Reid decision, California plaintiffs will have a difficult time surviving summary judgment by relying on isolated statements not related to the adverse decision.  That said, this case serves as a good reminder to employers in California and across the country to train and re-train employees at all levels of the organization on proper workplace conduct.