If you believe that you have experienced discrimination in the workplace due to your race, gender, sexual orientation, gender identity, religion, or nationality, you have the right to bring an employment discrimination case under federal and state laws. Employers are prohibited from discriminating against current or prospective employees based on any of these factors.
The stray remarks doctrine can come into play during an employment discrimination case. A stray remark refers to a discriminatory comment made in the workplace that influences a significant employment decision, such as hiring, firing, or wage determination. Such remarks are often presented as evidence to dispute an employer’s motion for summary judgment, which is an attempt to end the case.
Understanding what constitutes a stray remark and your legal rights is crucial if you have been negatively impacted by one in your workplace. Stray remarks may include comments about your appearance, accent, or cultural background that are irrelevant to your job performance. If such comments are made by your employer or coworkers, it can be considered evidence of discrimination.
Even if a discriminatory remark is made by someone who is not directly involved in the employment decision, it can still be considered a stray remark. It can be used as evidence in an employment discrimination case.
Stray remarks can be made at any time during an employment discrimination case. For instance, if the case involves wrongful termination, a stray remark does not necessarily have to be made when the supervisor decides to terminate an employee. It could have been made weeks or even months earlier.
The following are some examples of common stray remarks:
- A male employee remarks that a female coworker is too emotional.
- A younger employee comments on how an older coworker isn’t familiar with how to use social media.
- An employee makes a mocking comment about a coworker’s religious beliefs.
Suppose a supervisor overhears these stray remarks while considering a promotion or facing a decision about hiring or firing an employee down the line. In that case, it can be problematic if the remarks influence the final decision.
Furthermore, a stray remark can come from anyone in the workplace, not just the decision-maker, such as your supervisor. Even comments made by coworkers can be considered evidence in an employment discrimination case if they have a negative impact on someone’s job.
Traditionally, the federal court system held that a stray remark made by a non-decision maker in the workplace that was not directly related to the employment decision would not impact the case outcome. However, in recent years, more courts have recognized that stray remarks can indeed have an effect on an employment discrimination case, especially if the remarks ultimately lead to a negative outcome for the affected party.
The admissibility of evidence of stray remarks to fight a motion for summary judgment or at trial will depend on the jurisdiction in which the employment discrimination case is filed. However, it is essential to remember that stray remarks alone are usually insufficient to win an employment discrimination case. Nonetheless, they can be used to support your case in certain circumstances.
In an employment discrimination case, courts will examine the entirety of the evidence presented. Therefore, you must provide additional evidence beyond stray remarks to support your claim. This may include previous instances of discrimination or written evidence indicating discriminatory intent behind the employment decision.
When determining which parties to name as defendants, it is unlikely that a coworker who made a stray remark will qualify as an individual defendant. Instead, they can be used as a witness to support your discrimination case against the employer. It is typically more effective to name the decision maker, often your supervisor, as an individual defendant.
For stray remarks to be considered relevant evidence in an employment discrimination case, there must be a causal connection between the comments and the ultimate employment decision, such as hiring or firing an employee. If it is apparent that the decision-maker was unaware of the stray remark, it will be deemed irrelevant. Additionally, negative intent behind the stray remark is usually required to be present.
Keeping a written record of discrimination, including stray remarks, is crucial. If a statement is made verbally, it should be documented with an email or text. A written journal including names, dates, and other details can also be helpful. Since stray remarks are often made in passing, having a written record of the statement will support your case.
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When facing an employment discrimination claim, an employer may use defenses to counter the Stray Remarks Doctrine.
The following are a few defenses that an employer can use:
- Timing: The employer can argue that the alleged stray remarks were made too long before or after the adverse employment action to be considered relevant. If a significant amount of time has passed, the employer can argue that the remarks have no bearing on the decision in question.
- Context: The employer can provide context around the remark, showing that it was not intended to be discriminatory or made in a nondiscriminatory setting. Providing context can help to demonstrate that the remark was unrelated to the decision-making process.
- Decision-maker: The employer can show that the person who made the stray remark was not involved in the decision-making process, thus asserting that the remark had no impact on the employment decision. If the person who made the comment did not have the authority to influence the decision, the remark might be considered irrelevant.
- Nondiscriminatory reasons: The employer can provide legitimate, nondiscriminatory reasons for the adverse employment action, such as poor job performance, violation of company policies, or economic considerations. The employer can weaken the connection between the stray remark and the decision in question by providing legitimate reasons.
- Pattern of nondiscrimination: The employer can demonstrate a consistent history of nondiscriminatory practices and decisions, which can help to counter the allegation that a single stray remark indicates a pattern of discrimination.
- Isolated incident: The employer can argue that the stray remark was an isolated incident that does not reflect the overall company culture or decision-making process. By showing that the remark was not part of a larger pattern of discriminatory behavior, the employer can reduce its significance.
The strength and applicability of these defenses will depend on the case’s specific facts. Employers should consult with legal counsel to determine the best strategy for defending against an employment discrimination claim based on the Stray Remarks Doctrine.
If you believe that you have experienced discrimination in the workplace, it is recommended that you consult with a local discrimination lawyer. A lawyer can review the evidence and determine if you have a viable case. They can also advise you on the admissibility of stray remarks in your jurisdiction and whether they can be used as evidence in your case.
In addition, a discrimination lawyer can assist you in filing an administrative charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or a comparable state agency. If your case is not resolved during the administrative process or in settlement negotiations, a lawyer can also file a civil employment discrimination lawsuit on your behalf. Throughout these proceedings, your lawyer will represent your interests and work towards achieving the best possible outcome for you.
