The stray remarks doctrine is a legal concept related to discrimination in an employment setting. Basically, a “stray remark” is a discriminatory statement which is made by an employer or employee which influences a major employment decision such as those regarding hiring, firing, or wages. 

The discriminatory statement is called a “stray remark” because it does not need to be made at the time of the decision making. It can be made in passing or as a casual reference to the candidate for employment. Most jurisdictions will not allow an entire case to be based solely on stray remarks for evidence of discrimination. Usually state law requires that the stray remarks be supported by other evidence, such as statistics or a history of discrimination by that employer.

Employers are prohibited from discriminating against future or present employees regarding such classifications as race, sex, gender, nationality, or religious beliefs. If an employer or co-worker has made a stray remark regarding these classifications, they may be subject to an employment discrimination investigation. 

Who is liable for making stray remarks?

Generally, any person who is employed by the organization can be found liable for a stray remark. Liability for stray remarks will vary between states, but usually the following persons can be held liable:

  • Employers
  • Fellow co-workers
  • Employees or supervisors with significant decision-making authority

The court must be able to find a “causal connection” between the statement and the employment decision. That is, the stray remark must have caused the employee to suffer losses or damages. Also, the person usually must demonstrate some sort of intent to negatively affect the plaintiff through their stray remarks. 

What is an example of a stray remark?

An example of a stray remark is when an employee makes a discriminatory statement about another co-worker’s gender. Suppose that the co-worker is up for a promotion, but their supervisor overhears the stray remark. Next, the supervisor decides not to promote the person based on the information contained in the stray remark.

In this instance, since the stray remark influenced the supervisor’s decision, both the supervisor and the person who made the remark might be found guilty of employment discrimination. However, if the stray remark is not used at all for decision-making purposes, or if it was made at a point in time far away from the decision, then they might not be held liable.   

Thus, one common way for employers to avoid liability is to remove any employees from decision-making roles if they have been known to utter stray remarks. In this way the “causal connection” is severed, and the decision will be made without reference to the stray remarks. The supervisor may avoid liability since they rendered a fair decision, but the employee who made the stray remark may suffer consequences with their employer.    

What should I do if someone has made stray remarks about me?

First of all, you should keep a record of any instances that you believe may lead to a discrimination claim. Record the instances in writing and be sure to include names, dates, and contact information of the people and witnesses involved. 

Also, you will be required to prove a connection between the stray remark and your losses. Therefore, make sure that you are able to describe how they are connected. For example, if your co-worker made a stray remark, you must describe how that led to you being fired or denied benefits. This may involve creating a narrative of the sequence of events leading up to the final employment decision. 

Do I need a lawyer for a stray remarks issue?

Employment discrimination is very serious matter, and stray remarks can often provide much evidence in support of your argument. If you feel that you have been adversely affected by stray remarks, be sure to contact an employment lawyer immediately. You may be required to file with an administrative agency such as the EEOC, and an attorney can help you prepare your claim. Finally, be sure to keep records of work logs and wage stubs so that you can support your claim with additional evidence.