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Stray Remarks Doctrine

Does An Employer’s Disparaging Comments About You Give You The Right To Sue The Employer, Claiming Harassment Or Discrimination?

Short Answer: Negative comments, such as a supervisor or co-worker referring to an employee as “old and washed up” do not amount to harassment, unless they are more severe, and frequent at work. Sometimes, these kind of remarks are called by lawyers for defendants “stray remarks.” While stray remarks alone may not rise to the necessary level of discrimination in all cases, disparaging comments by co-workers or supervisors are useful in demonstrating whether the company has an intent to discriminate against you.


In 2004, Brian Reid, a former employee of Google, sued the company asserting numerous claims, including age discrimination. Google asked the trial court to throw out various claims before trial. In so doing, Google asked the courts to ignore statements by other employees that Mr. Reid was “slow,” “fuzzy,” “sluggish,” “lethargic” an “old man” and “old fuddy-duddy,” and that his ideas were “obsolete” and “too old to matter.” Google argued that the statements were irrelevant because they were made by non-decision-makers and were unrelated to the adverse employment decision. The Court of Appeals refused to ignore the comments and did not throw out the claims. Google appealed to the California Supreme Court. In analyzing the issues, the California Supreme Court analyzed what had become known as the “stray remarks” doctrine.

The California Supreme Court noted that the “stray remarks” doctrine was first mentioned by United States Supreme Court Justice O’Connor in a concurring opinion in 1989. Justice O’Connor stated that unlike direct evidence of discriminatory animus, stray remarks, “standing alone” do not suffice to shift the burden of persuasion to the employer; decision makers may make neutral, non-discriminatory comments about an employee’s race or gender. However, Justice O’Connor explained that stray remarks can be probative of discrimination, and ultimately concluded that the plaintiff provided the requisite direct evidence that decision makers had unlawfully based their decision on gender.  Subsequently, federal courts began using the stray remarks doctrine to deem irrelevant any remarks made by non-decision making co-workers or remarks made by decision-making supervisors outside of the decisional process. This allowed federal judges to throw out claims that were only based on the stray remarks.In considering Google’s appeal, the California Supreme Court noted that while California appellate cases had analyzed similar issues, the doctrine has never been adopted or rejected in California. It therefore decided to address the issue. In favor of the doctrine, Google argued that the doctrine should be adopted so that California courts can disregard discriminatory comments by co-workers and non-decision-makers, or comments unrelated to the employment decision to ensure that cases that are principally supported by such remarks are disposed of before trial. On the other hand, Reid argued that courts should not view the remarks in isolation, but that those remarks should be considered with all the evidence in the record. The California Supreme Court agreed with Reid.

In rejecting the stray remarks doctrine, the California Supreme Court stated that if it was strictly applied, it would result in a trial court’s categorical exclusion of evidence, even if the evidence was relevant. This would be improper, the court held, stating that 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. Next, it stated that it would be improper for a trial court to weigh the evidence of whether a comment was stray or irrelevant, a task that is left for the jury. Moreover, the Court stated it would allow a trial court to weigh and assess the remarks in isolation, and to disregard the potentially damaging nature of discriminatory remarks simply because they are made by non-decision-makers or made by decision-makers unrelated to the decisional process.” It stated that this was improper because although stray remarks may not have strong probative value when viewed in isolation, they may corroborate direct evidence of discrimination or gain significance in conjunction with other circumstantial evidence. Further, the Court held that the doctrine ignores that discriminatory remarks by a non-decision-making employee can influence a decision maker. Finally, the California Supreme Court noted that federal courts have treated identical remarks inconsistently under the doctrine. For instance, some courts have viewed decision makers’ statements that older employees are not “promotable” as evidence of age discrimination, while others have refused to permit that inference from the same remark. The Court did not like the widely divergent views regarding who constitutes a decision maker and how much separation must exist between the remark and an adverse employment decision for the remark to be considered stray.

Words of Caution: For all those reasons, the California Supreme Court rejected the “stray remarks” doctrine. However, if you think that you are being phased out of your job, and that these kind of remarks are being made, you should do everything you can to document these, including writing a memo or email to Human Resources or management pointing out specifics, and objecting to these statements. If you are subjected to these kind of remarks by your supervisors or co-workers, they may help support your case and demonstrate the evidence of discrimination.

If you have questions, please contact Mark H. Wagner, Esq. at