We all know that discrimination can be shown by direct evidence (“You are too old for our workplace”) or indirect evidence (circumstantial evidence by which one can infer that discrimination played a role in the adverse employment action).  

Two federal courts recently dealt with a similar issue – an employee who claims that evidence of discriminatory intent can be seen in one remark from a supervisor.    

In Fried v. LVI Services, a 71 year old employee who had his responsibilities reassigned was told by the president that “you’re 71 years of age … we have to plan for the future,” while in Makowski v. SmithAmundsen LLC, a pregnant employee was told by the head of HR that she was terminated because she was pregnant and took medical leave, and who also told her about the employer’s discriminatory treatment towards other pregnant women.    

The trial courts in both cases dismissed the claims. In Fried, the Court determined that this indirect evidence consisted of a “stray” remark – a single, isolated age-related comment.  The EEOC is appealing this ruling to the federal court of appeals in New York.   In Makowski, the appeals court held that there was direct evidence that “pregnancy was the motivating factor” in the employee’s termination, and reinstated the claim.

Moral: Don’t make stray comments or ANY comments that can be construed as evidencing “discriminatory animus.”