California Supreme Court Holds That Stray Remarks May Be Considered In Employment Discrimination Cases
August 2010
Number 37
CLIENT NEWS BRIEF
CALIFORNIA SUPREME COURT HOLDS THAT STRAY
REMARKS MAY BE CONSIDERED IN EMPLOYMENT
DISCRIMINATION CASES
The California Supreme Court recently held that an employee may introduce statements made by
non-decision-makers, or statements made by decision-makers outside of the decisional process, as
evidence to support a claim of discrimination against the employer. In Reid v. Google, Inc. (August
5, 2010) ___ Cal.App.4th ____, the Supreme Court held that a trial court should have considered
allegedly discriminatory remarks made by the plaintiff's supervisors and coworkers in deciding
whether to grant the employers' motion for summary judgment.
Brian Reid worked at Google, Inc. ("Google") between June 2002 and February 2004. Google's vicepresident
of engineering, Wayne Rosing, hired Mr. Reid (then age 52) as director of operations and
engineering. In Mr. Reid's first-year performance review, Mr. Rosing said that Mr. Reid "consistently
[met] expectations" and described Mr. Reid as "very intelligent," "creative," and "a terrific problem
solver." Mr. Reid received bonuses from February 2003 to February 2004.
In September 2003, Google cofounder Sergey Brin sent an e-mail to several executives, commenting,
"We should avoid the tendency towards bloat here particularly with highly paid individuals." Mr.
Rosing responded, "Excellent memo . . . . We are looking for a senior Director (note I did not
capitalize Sr.) or VP level person to run this operation. . . .". In October 2003, Mr. Rosing relieved Mr.
Reid of his responsibilities as director of operations and engineering. Two other employees, 15 and
20 years younger than Mr. Reid, took over his duties. In his new capacity, Mr. Reid was asked to
develop and implement an in-house graduate degree program, but he was given no budget or
staff to support it.
In February 2004, Mr. Rosing told Mr. Reid that because of a lack of "cultural fit," the engineering
department no longer had a place for him. Mr. Rosing encouraged Mr. Reid to apply for positions
with other departments. However, the various department heads circulated e-mails agreeing that
no one would hire Mr. Reid, referring to "The Company Decision." Two department heads told Mr.
Reid that no positions were available for him, and Mr. Reid left the company.
In July 2004, Mr. Reid sued Google. Mr. Reid's complaint alleged age discrimination in violation of
the California Fair Employment and Housing Act and California's unfair competition law. In addition
to providing evidence of the events described above, Mr. Reid alleged that while working at
Google, other employees made derogatory age-related comments to him. Mr. Reid said that every
few weeks, one coworker made remarks that Mr. Reid's opinions and ideas were "obsolete" and "too
Page 72
As the information contained herein is necessarily general, its application to a particular set of facts
and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We
recommend that you consult with your counsel prior to acting on the information contained herein.
Written by:
August 2010
Number 37
CLIENT NEWS BRIEF
old to matter," that he was "slow," "fuzzy," "sluggish," and "lethargic," and that he did not "display a
sense of urgency" and "lack[ed] energy." Mr. Reid said that other coworkers called him an "old
man," an "old guy," and an "old fuddy-duddy."
The trial court granted Google's motion for summary judgment and dismissed Mr. Reid's
discrimination claims, holding that Reid had failed to raise a triable issue as to whether Google's
legitimate reasons for terminating his employment were a pretext for discrimination. An appellate
court disagreed and held that all the evidence in the record, including the discriminatory comments
made by supervisors and coworkers, was sufficient to raise a triable issue as to pretext. The court of
appeal rejected Google's argument that the alleged ageist comments by supervisors and
coworkers were stray remarks and therefore insufficient proof of pretext.
The Supreme Court affirmed the Court of Appeal's holding and its rejection of the "stray remarks"
doctrine. As the Supreme Court explained, a trial court must base its summary judgment decision on
the totality of evidence in the record, including relevant stray remarks. While stray remarks alone
may not reliably indicate discriminatory intent, they may corroborate direct evidence of
discrimination or gain significance when viewed with other circumstantial evidence. Factors that
should be considered are who made the stray comments, how close they were made to the
adverse employment decision, and in what context they were made.
For employers, this decision underscores the importance of cultivating and maintaining a workplace
free of discrimination at all levels of employment, not just management. While an employee
probably would not prevail on a claim of discrimination against an employer if the employee's only
evidence of discrimination consisted of stray remarks made by supervisors and/or coworkers, an
employee could use discriminatory stray remarks to strengthen an already viable claim of
discrimination.
If you have any questions regarding this decision, please do not hesitate to contact any of our seven
offices located statewide, or consult our website.
Mark Kitabayashi
Senior Counsel and Chairperson of the Litigation Practice Group
Los Angeles Office
mkitabayashi@lozanosmith.com
Kimberly Gee
Associate
Monterey Office
kgee@lozanosmith.com
© 2010 Lozano Smith Page 73
Number 37
CLIENT NEWS BRIEF
CALIFORNIA SUPREME COURT HOLDS THAT STRAY
REMARKS MAY BE CONSIDERED IN EMPLOYMENT
DISCRIMINATION CASES
The California Supreme Court recently held that an employee may introduce statements made by
non-decision-makers, or statements made by decision-makers outside of the decisional process, as
evidence to support a claim of discrimination against the employer. In Reid v. Google, Inc. (August
5, 2010) ___ Cal.App.4th ____, the Supreme Court held that a trial court should have considered
allegedly discriminatory remarks made by the plaintiff's supervisors and coworkers in deciding
whether to grant the employers' motion for summary judgment.
Brian Reid worked at Google, Inc. ("Google") between June 2002 and February 2004. Google's vicepresident
of engineering, Wayne Rosing, hired Mr. Reid (then age 52) as director of operations and
engineering. In Mr. Reid's first-year performance review, Mr. Rosing said that Mr. Reid "consistently
[met] expectations" and described Mr. Reid as "very intelligent," "creative," and "a terrific problem
solver." Mr. Reid received bonuses from February 2003 to February 2004.
In September 2003, Google cofounder Sergey Brin sent an e-mail to several executives, commenting,
"We should avoid the tendency towards bloat here particularly with highly paid individuals." Mr.
Rosing responded, "Excellent memo . . . . We are looking for a senior Director (note I did not
capitalize Sr.) or VP level person to run this operation. . . .". In October 2003, Mr. Rosing relieved Mr.
Reid of his responsibilities as director of operations and engineering. Two other employees, 15 and
20 years younger than Mr. Reid, took over his duties. In his new capacity, Mr. Reid was asked to
develop and implement an in-house graduate degree program, but he was given no budget or
staff to support it.
In February 2004, Mr. Rosing told Mr. Reid that because of a lack of "cultural fit," the engineering
department no longer had a place for him. Mr. Rosing encouraged Mr. Reid to apply for positions
with other departments. However, the various department heads circulated e-mails agreeing that
no one would hire Mr. Reid, referring to "The Company Decision." Two department heads told Mr.
Reid that no positions were available for him, and Mr. Reid left the company.
In July 2004, Mr. Reid sued Google. Mr. Reid's complaint alleged age discrimination in violation of
the California Fair Employment and Housing Act and California's unfair competition law. In addition
to providing evidence of the events described above, Mr. Reid alleged that while working at
Google, other employees made derogatory age-related comments to him. Mr. Reid said that every
few weeks, one coworker made remarks that Mr. Reid's opinions and ideas were "obsolete" and "too
Page 72
As the information contained herein is necessarily general, its application to a particular set of facts
and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We
recommend that you consult with your counsel prior to acting on the information contained herein.
Written by:
August 2010
Number 37
CLIENT NEWS BRIEF
old to matter," that he was "slow," "fuzzy," "sluggish," and "lethargic," and that he did not "display a
sense of urgency" and "lack[ed] energy." Mr. Reid said that other coworkers called him an "old
man," an "old guy," and an "old fuddy-duddy."
The trial court granted Google's motion for summary judgment and dismissed Mr. Reid's
discrimination claims, holding that Reid had failed to raise a triable issue as to whether Google's
legitimate reasons for terminating his employment were a pretext for discrimination. An appellate
court disagreed and held that all the evidence in the record, including the discriminatory comments
made by supervisors and coworkers, was sufficient to raise a triable issue as to pretext. The court of
appeal rejected Google's argument that the alleged ageist comments by supervisors and
coworkers were stray remarks and therefore insufficient proof of pretext.
The Supreme Court affirmed the Court of Appeal's holding and its rejection of the "stray remarks"
doctrine. As the Supreme Court explained, a trial court must base its summary judgment decision on
the totality of evidence in the record, including relevant stray remarks. While stray remarks alone
may not reliably indicate discriminatory intent, they may corroborate direct evidence of
discrimination or gain significance when viewed with other circumstantial evidence. Factors that
should be considered are who made the stray comments, how close they were made to the
adverse employment decision, and in what context they were made.
For employers, this decision underscores the importance of cultivating and maintaining a workplace
free of discrimination at all levels of employment, not just management. While an employee
probably would not prevail on a claim of discrimination against an employer if the employee's only
evidence of discrimination consisted of stray remarks made by supervisors and/or coworkers, an
employee could use discriminatory stray remarks to strengthen an already viable claim of
discrimination.
If you have any questions regarding this decision, please do not hesitate to contact any of our seven
offices located statewide, or consult our website.
Mark Kitabayashi
Senior Counsel and Chairperson of the Litigation Practice Group
Los Angeles Office
mkitabayashi@lozanosmith.com
Kimberly Gee
Associate
Monterey Office
kgee@lozanosmith.com
© 2010 Lozano Smith Page 73
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
