A reader of our blog noted our comment last week about the EEOC’s arguing to a federal appeals court in New York 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.”  

She directed us to the Rawline decision from last June which got a lot of media play where a plaintiff’s only evidence of age discrimination was a comment by her supervisor that she should clean up her act by “wearing clothes that are more appropriate for the workplace and maybe such as getting her hair trimmed and dyed.”  Plaintiff had gray hair.

The Court held that there was no evidence of age animus and that the hair color reference was an incidental comment made only “in the context of her overall disheveled appearance.”

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).  As we said last week, the so-called “stray remarks doctrine” was developed to describe or define comments or remarks made that, although on their face appear to reflect direct age bias or age animus, are insignificant or immaterial when understood in the context in which they are spoken, and are therefore found not to be sufficient evidence of age bias.

Seems like a gray hair remark is a stray remark.