You can bring an employment discrimination case if you feel that you were discriminated against in the workplace based on factors like race, gender, sexual orientation, gender identity, religion, and nationality. Under federal and state laws, employers are prohibited from discriminating against future or present employees in a workplace context based on these factors.

The stray remarks doctrine can be brought up during an employment discrimination case. Generally, a stray remark refers to a discriminatory statement that someone makes about another in the workplace setting that influences a major employment decision like hiring, firing, or wage determination. These are often offered as evidence to defeat a claim of summary judgment brought by an employer as an attempt to end the case.

It is important to know what qualifies as a stray remark and your legal rights if you have been negatively affected by a stray remark at work.

What Are Some Examples of Stray Remarks?

Remember, in the context of an employment discrimination case, stray remarks can be made at any time. For example, if the case is about wrongful termination a stray remark does not need to be made at the time the supervisor decided to fire an employee — it could have been made weeks earlier. Here are a few common examples of stray remarks:

  • A male employee says that a female coworker is too emotional;
  • A younger employee comments on how an older coworker has no clue how to use social media; and
  • An employee makes a mocking comment about a coworker’s religious beliefs.

Say these stray remarks are overheard by a supervisor who is debating giving the employee being talked about a promotion. Say they face a decision about firing that employee a month down the road. Or say these comments were instead made about a potential candidate for hire. This can be a problem if the supervisor lets these remarks influence hiring, firing, or promotion decisions.

The stray remark does not need to be made when the employer makes a major employment decision. Instead, it could be made in passing sometime before the decision is made. The importance of the stray remark is the ultimate effect it has on an employment decision. It will be viewed as a piece of the puzzle in an employment discrimination case, but may not be determinative of the case outcome.

The stray remark also does not need to be made by the decision maker, like your supervisor. In addition, stray remarks made by your fellow coworkers can come into play in a legal context if you believe it had a hand in your employment discrimination.

For years in the federal court system, the stray remarks doctrine stood for the position that a stray remark made by a non-decision maker in a workplace setting that was directly unrelated to the employment decision would not have an impact on the case outcome. However, over the past decade or so, more courts have held that stray remarks can factor into an employment discrimination cases, especially if the remarks end up having a negative effect on someone else’s job.

How Can Stray Remarks Be Used in a Legal Context?

Whether you can use evidence of stray remarks to fight a motion for summary judgement or at trial will depend on your jurisdiction. Just remember that stray remarks alone will likely never be enough to win an employment discrimination case. However, these statements can help prove your case in some instances.

Courts will look at the totality of the evidence in an employment discrimination case. As such, there will need to be other evidence besides stray remarks to support your claim, like past illustrations of discrimination or written evidence that the employment decision was grounded in discriminatory intent.

When deciding who to name as the party defendants, know that a fellow coworker who makes a stray remark will likely not qualify as an individual defendant. Instead, you could use them as a witness to build your discrimiantion case against the employer. You will have a better chance of naming the decision maker (usually your supervisor) as an individual defendant.

To be relevant evidence, courts will generally look for a causal connection between the stray remark and ultimate employment decision, like whether to fire or hire someone. If it is clear that the decision maker never heard about the stray remark, it will be deemed irrelevant. Negative intent behind the stray remark is also usually a required component.

It is important to keep a written record of discrimination, including stray remarks. If something is said verbally, document it with an email or text. You can also keep a written journal with names, dates, and other specifics. Since stray remarks are often made verbally in passing, having this written reflection of the statement will help support your case.

Do I Need to Contact a Lawyer for Help with the Stray Remarks Doctrine?

It is always a good idea to consult a local employment lawyer if you feel that you have been discriminated against in the workplace. A lawyer can review the evidence and determine if you have a case. A lawyer will also know your jurisdiction’s stance on stray remarks and can advise you on whether any stray remarks can be offered as evidence.

A lawyer can file an adminsitrative charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) or comparable state agency if they think you have a case. A lawyer can also file a civil employment discrimination lawsuit if the case is not resolved at the administrative level or during settlement negotiations. During all of these proceedings, your lawyer will represent your interests and work to get you the best outcome.