The California Supreme Court issued an opinion last week in which it refused to disregard stray comments about an ex-employee’s age as evidence of discrimination.

The opinion rejected the “stray remarks doctrine” introduced by Justice O’Connor in 1981 in a Supreme Court opinion and sometimes applied by federal courts in discrimination cases in order to exclude discriminatory comments that are made outside the decision-making context. In other words, under the doctrine, comments by co-workers or supervisors who were not directly involved in a particular employment decision are not relevant in determining whether there was discrimination.

In the case, Reid v. Google, a 54-year-old former manager for the Internet search engine giant filed an age discrimination lawsuit under California law, in which he alleged his termination for poor performance and job elimination was really because of age. Mr. Reid’s allegations included three categories of derogatory remarks:

  • Co-workers made comments, including calling him “old man” and “old guy” and referred to him as an “old fuddy-duddy.”
     
  • A younger supervisor, who did not play a role in Mr. Reid’s termination, called him “slow,” “obsolete,” and “too old to matter.”
     
  • A third supervisor, who also did not play a direct role in Mr. Reid’s termination, told Mr. Reid the reason he was terminated was because he “was not a cultural fit” with the company.

The trial court, applying the stray remarks doctrine, dismissed the case, finding Mr. Reid could not establish discrimination because none of the comments came from those directly involved in the termination decision. However, in last week’s opinion, the California Supreme Court stated it would be unfair to ignore remarks by those not directly involved in the termination decision. The court further explained it declined to adopt the stray remarks doctrine because although the co-workers did not take part in employment decisions, they still may have had an influence on the decision-makers.

The Reid opinion highlights the need to ensure that discriminatory comments by anyone, including employees not involved in employment decisions, will not be tolerated.