AARP’s brief, filed by attorneys with AARP Foundation Litigation, argued that Google’s argument incorrectly stated the law by urging the court to rule that unless the statement was made by the employee’s supervisor in the context of and contemporaneously with the employment decision being challenged, the statement must be excluded under the so-called stray remarks doctrine.
AARP’s brief argued that although a statement that satisfies these criteria is clearly relevant evidence, it is incorrect to say that all other statements must be excluded as irrelevant at the summary judgment stage of proceedings — the point in a case where, effectively, the defendant is asking the court to dismiss the case because the plaintiff has not presented enough evidence to require a jury to resolve the case. The brief argued that the correct rule at the summary judgment stage is that the trial judge must decide in light of the circumstances in which the statements were made whether the statements and any other evidence offered by the plaintiff are sufficient to permit the jury to infer discriminatory intent on the part of the employer. If so, summary judgment is improper and the case must go to trial.
The Court’s Ruling
The California Supreme Court agreed. In a lengthy and thoughtful unanimous decision that detailed the history and various applications of the “stray remarks” doctrine applied by federal courts, the court ultimately rejected Google’s offer to impose such an evidentiary straitjacket at the summary judgment stage of the proceedings.
“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,” wrote the court. Moreover, it is not always clear who was a decision maker and who was not, and even if made by a non-decision maker, discriminatory remarks by a non-decisionmaking employee can influence a decision maker. “The only consistency to the federal stray remarks doctrine is that the probative value of the challenged remark turns on the facts of each case.” Thus, the court ruled that it is improper to apply the stray remarks doctrine to exclude evidence at summary judgment.
The so-called stray remarks doctrine is regularly and improperly invoked by courts. All too often it works to exclude a plaintiff’s evidence of ageist workplace statements that should be sufficient to defeat a defendant’s request for summary judgment. The issue is particularly important since in many instances what was said in the workplace is the most persuasive evidence of age bias employees are able to offer. Hopefully, the rejection of the stray remarks doctrine for employment discrimination cases under California law will cause other state and federal courts to re-examine and to also reject it.