Know Your Rights
Not-So-Stray Remarks on Job

By JAMES A. BROWN

From time to time, certain statements made in the workplace cross the line from being merely inappropriate to qualifying as unlawful discrimination. When employees claim they have been subjected to discriminatory comments, employers often counter by arguing that the comments were merely "stray remarks." In other words, the comments were too few or infrequent to satisfy the legal definition of "discrimination."

James A. Brown is an attorney based in Manhattan. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com .

Fortunately, this past winter a Federal appeals court in New York handed employees a good decision which may weaken an employer's "stray remark" defense. The decision, Tomassi v. Insignia Financial Group, Inc., is today's topic.

Discriminatory Comments

As previously reported in this column, an employee's evidence of employment discrimination is often circumstantial. For example, a plaintiff will argue that he or she suffered discrimination because certain other employees were more favorably treated. In other cases, employees will point to their strong work performance and argue that their adverse treatment can only be explained by unlawful discrimination.

To bolster a circumstantial case, plaintiffs ideally cite workplace comments as further evidence of discrimination. Yet discriminatory comments are rarely blatant. A supervisor who adversely treats an employee is unlikely to state: "I hate older workers," or "You will never succeed because you are a woman."

Rather, discriminatory comments are usually more subtle such as, when indicating age discrimination: "You're slowing down"; "We need some new blood around here"; or "We're looking for a more energetic work force."

Biased Response

In Tomassi, the plaintiff was 61 years old when she began working for the defendant, a property management company. The plaintiff alleged that her immediate supervisor had regularly made age-based comments to her every one to two months. The supervisor would begin his comments: "In your day and age ..." He also added that the plaintiff could "understand the mentality of" the older residents; he also encouraged plaintiff to retire to "take time off to rest."

Two years after the plaintiff was hired, her employment was terminated. According to the plaintiff, her immediate supervisor stated among other things: "I figure that you probably didn't want to work long hours any more ..." and "I figured maybe you could do some work with the seniors." Of note, the company also hired a 25-year-old employee to perform substantially the same job duties which had been performed by the plaintiff.

Plaintiff's lawsuit, which stated age discrimination claims among others, was dismissed by the district court. The court essentially accepted the employer's defense that the age-based comments were "nothing more than stray remarks" and thus not actionable.

On appeal, the Second Circuit Court of Appeals reversed. The appeals court made clear that discriminatory comments, before they are dismissed as too few or as "stray remarks," must first be examined in the context of all of the evidence.

Acknowledging that its own precedent regarding "stray remarks" was "somewhat confusing," the appeals court stated that the infrequency of remarks is not the determining factor when deciding the evidentiary value of those remarks. Rather, a court should weigh the following factors: (a) who made the discriminatory comments; and (b) when were the comments made? For example, comments made by the "decision-maker" (who is responsible for the adverse treatment) should be afforded greater weight. Similarly, comments made near the time of the adverse action should also be given greater weight than comments which are made remote in time.

Don't Have to Offend

Finally, the appeals court cautioned that whether comments evince discrimination is not necessarily determined by how offensive the comments are. Some non-offensive comments (i.e. that plaintiff "was well-suited to working with seniors") may show that an employer, for discriminatory reasons, believes an employee to be unqualified to work with younger persons.

This appeals court decision may make it easier for plaintiffs to prove discrimination without fear that certain comments fail some numeric test; in other words, are too few in number. The court's conclusion is simple and sensible: we must examine the context in which comments are made - who made the comments and when. The decision underscores that an employer's simplistic "stray remarks" defense should not be accepted without deeper analysis and scrutiny.