One of the most troubling issues in employment litigation is the type of proof a person needs to present in order to prove discriminatory prejudice. If the plaintiff presents evidence that various workers – other than the ultimate decision maker – uttered charged remarks (such as racial, sexist or ageist epithets), is that sufficient? Or is more evidence required?
This issue came to a head in Reid v. Google, Inc. In that case, Brian Reid claimed that he was fired by Google because the company considered him to be “too old” to do the job. If he could prove that, he would be able to prevail under the California Fair Employment and Housing Act (Cal. Gov. Code §§ 12940, et seq.) which prohibits age discrimination.
In an attempt to make out his case, Reid introduced evidence that other workers referred to him as “slow,” “fuzzy,” “sluggish” and “too old to matter.” He also had evidence that still other co-workers called him an “old man,” an “old guy,” an “old fuddy-duddy,” and told him his knowledge was “ancient.”
After Reid was moved out of his position and could not find a comparable post within the company, he left with a two month severance package. He turned around and sued Google, contending that he was downgraded and illegally forced out because of his age, and not his ability.
The company successfully defended against Reid’s claim in the trial court, winning summary judgment. Google was able to show that there was a legitimate non-discriminatory reason for Reid’s treatment – they had eliminated a graduate degree program that Reid was hired under. Admittedly, this appeared to be close case. One question was whether the age-related comments cited by Reid should have been considered and, if so, whether they could tip the scales in Reid’s favor on his discrimination claim as they might cast doubt on the veracity of the purported reasons he was forced out of the company.
The California Supreme Court reversed the trial court’s ruling, and noted that there is no blanket rule in the state barring “stray remarks” from the trier of fact. Each case must be reviewed on its own, said the court. These difficult evidentiary issues require a “case-by-case” analysis and “stray remarks” must be evaluated “in totality with the other circumstances of the case.”
What does Reid v. Google mean for the future? The first and most immediate impact will probably be that employers will not be able to win summary judgment in “stray remarks” cases. But it also does not mean that an employee will automatically win even if he/she can present such evidence. Ultimately, the issue will be what the decision maker was thinking when the decision was made. And that determination, in most cases, will have to be made by a jury after a full trial.
A complete copy of the court’s ruling is attached for your convenience.
We regularly advise both employers and employees regarding various legal issues that arise in the workplace. Feel free to contact us if you need assistance in this area.