Bay Area Employment Lawyer Blog

The concept of the “stray remarks doctrine” has really never made any sense whatsoever. It is a judicially created doctrine that has historically been used to attempt to circumvent and discount discriminatory statements made by an employer or an employer’s employees or agents. Courts – especially federal courts – have held that the “stray remarks doctrine” establishes that statements made by non-decision-makers or by decision-makers outside of the decision making process cannot be used to establish discriminatory intent. This is absurd when you think about it. Taken to the extreme – which courts have done – this means that discriminatory comments are simply antiseptically removed from the record. This is exactly what the trial court did in the age discrimination case of Reid v. Google, 50 Cal. 4th 512 (Aug. 5, 2010).

In upholding the Court of Appeals’ reversal of the trial court, the California Supreme Court reminded the lower courts that they not use the “stray remarks doctrine” to bar otherwise probative evidence of discrimination, and that the courts should remember that the jury is the trier of fact, not the judge.

This commonsense approach should help to restore an even-keeled and balanced approach to the determination of whether a decision made by an employer was discriminatory or not. As stated by the California Supreme Court, cases in California have considered discriminatory remarks “in totality with the other circumstances of the case.” Further, as is obvious, cases have noted that, “An age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination.” Lastly, the Court thankfully permitted the introduction of statements made in the work place that the jury should be permitted to hear in this case, including comments that Mr. Reid was “obsolete…too old to matter…slow…fuzzy…sluggish…lethargic….and that he did not display a sense of urgency.” Thank goodness, the California Supreme Court decided that ageist statement can be considered in an age discrimination case!

In the modern world it is easy to slip into writing private emails, texts or other communications and expect that that what you write in confidence will remain confidential. After all, employees should and do have a reasonable expectation of privacy, correct? However, an employee should remember that – especially when you are using an employer-owned cell phone, computer or other devise – this right to privacy can be rather illusory.

In City of Ontario v Quon, 130 S. Ct. 2619 (2010), the United States Supreme Court (analyzing rights under the Fourth Amendment) approved of the City of Ontario’s search of employees’ text messages (including some sexually explicit messages) sent on city-issued cell phones, where city policy permitted monitoring of city cell phones. This was true even though City supervisors gave mixed messages about whether the City would monitor text messages.

Although this case really focused on U.S. constitutional standards, rather than the State of California’s constitutional right to privacy, this case should remind employees that they really should be wary of using employer-issued computers, cell phones or other devises for any personal communications. The courts are generally moving more and more towards finding that rights to privacy may give way to employer’s rights to monitor their employees and their equipment. This is especially true if the employer has a known policy permitting search of the devices or explicitly providing that the employer may or will monitor the devices (leading courts to conclude that the right to privacy is not so reasonable under these circumstances).

Bay Area Employment Lawyer Blog

Reid v Google Restores Common Sense to Discrimination Law by Holding that the Judicially Created “Stray Remarks Doctrine” cannot be used to Bar Evidence of Discrimination in a California Age Discrimination Case

What Right to Privacy? City of Ontario v Quon Reminds Employees to be Careful When Using Employer-Issued Computers, Cell Phones, or Other Methods of Communication