The EEOC argued to a federal appeals court in New York recently that it was troubled by the fact that some trial courts ignore or disregard direct evidence of age discrimination which have been characterized as “stray remarks.”   What are "stray remarks" and why are they significant enough for an appellate argument? 

In ADEA discrimination cases, the bottom line question asked, at least at the summary judgment stage, is whether the evidence when viewed in a light most favorable to the employee is sufficient to sustain a reasonable finding that her dismissal was motivated at least in part by age discrimination.  The so-called “stray remarks doctrine” was developed to describe or define comments or remarks made that, although on their face appear to reflect age bias or age animus,  are insignicant or immaterial when understood in the context in which they are spoken, and are therefore found not to be sufficient evidence of age bias.

One court (TOMASSI v. INSIGNIA FINANCIAL GROUP, INC.), attempting to define what constitutes a “stray remark,” noted some factors which might evidence less-than-actionable age bias: 

–  the more remote and oblique the remarks are in relation to the employer’s adverse action, the less they prove that the action was motivated by discrimination.

—  where they were unrelated to the plaintiff’s discharge.

—  when made in the workplace by persons who are not involved in the pertinent decisionmaking process.

A well known appellate judge (Judge Richard Posner in SHAGER v. UPJOHN COMPANY), gave his sense of what made a remark "stray":

“The remark taken to be a slur may have been innocent and misunderstood; or it may have had no consequence, either because it did not reflect the thinking of the people with decision-making authority or because it did not motivate even the person uttering it to act on it. It thus may fall far short of establishing a prima facie case. Even so, it may be relevant evidence, with greater or less probative value depending on the precise character of the remark.”

In the present case which the EEOC finds troubling, the employee was told by his supervisor:   “You’re 71-years of age. How do you expect to work? … What if you get hit by a bus?”   The trial court found this to be a “stray remark” and granted summary judgment to the employer. 

The EEOC argued that:  “age-based remarks are evidence like any other. They may be strong or weak evidence of age discrimination depending on factors such as who made them, their content, their audience, and their temporal proximity to the employment decision, and they should be weighed by the factfinder accordingly.”  

Since in this case the remark made to plaintiff was by the ultimate decision-maker who fired him less than one month later, and made in the context of a longstanding effort to get plaintiff to retire, the EEOC argued that the trial court should not have concluded as a matter of law at the summary judgment stage that the seemingly ageist remark by the ultimate decision-maker was “simply an age-neutral inquiry.”

The EEOC attorney arguing the case said that “This decision [by the trial court] isn’t an outlier. We see this frequently.”

In any event, the take away from this, in our opinion, is that even though courts are showing an increasing wilingness to ignore what employers usually contend are merely casual or joking or isolated remarks about an employee’s age, it is still good practice to avoid such remarks at all times, and to avoid code words which may be understood as ageist.  See our earlier blog.