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California Court Rejects "Stray Remarks" Defense in Age Discrimination Case

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Brian Reid was something of a minority at Google, where he was hired as director of operations and engineering in 2002. At 52, Reid was older than most of his coworkers at the Internet giant - and they didn't let him forget it.

Reid says coworkers routinely called him an "old man" and "old fuddy-duddy" and joked that his CD jewel case office placard should be an LP instead of a CD. Reid also says that vice president of engineering operations Urs H?lzle, who was 15 years younger than Reid, called his ideas "fuzzy," "slow," "sluggish" and "lethargic" and H?lzle made age-related remarks every few weeks.

After he was ultimately phased out of the company, Reid filed suit against Google for age discrimination. On Aug. 5, the California Supreme Court ruled in Reid's favor in Reid v. Google, effectively neutralizing the Stray Remarks Doctrine - previously applied to exclude comments from non-decisionmakers in discrimination cases - that defense lawyers had relied on for years.

"I think we, on the defense side, have benefited from perhaps an overstatement of what the doctrine originally was," says Heather Sager, a partner at Drinker Biddle. "For years, we've argued at summary judgment, if it's a stray remark of any kind then the whole cause of action fails as a matter of law. And most courts, quite frankly, have agreed with that. The stray remarks doctrine has probably gotten a lot stronger than it even initially was intended to be."

Google argued stray remarks in Reid, but the California Supreme Court ruled that the discriminatory remarks may have indicated a larger atmosphere of discrimination within the company and that at least some of the remarks were made by people with influence over decisionmakers.

E-mail Evidence

Reid argued that although he received only one written performance review, written by Google's vice-president of engineering Wayne Rosing (who was three years older than Reid), it was positive. Rosing wrote that Reid had "an extraordinarily broad range of knowledge" and "project[ed] confidence when dealing with fast changing situations."

In September 2003, Google co-founder Sergey Brin, 24 years Reid's junior, sent an e-mail to several of the company's executives encouraging them to "avoid the tendency towards bloat here, particularly with highly paid individuals." Rosing responded with his organizational plans, noting that he was "looking for a senior Director (note I did not capitalize Sr.) or VP level person to run this operation."

Experts say these e-mails serve as a reminder to employers who are considering the termination of an employee of the consequences of electronic discussion.


"Employers really have to be careful about their internal communications when they're considering what the criteria are for letting someone go," says Keith Watts, a shareholder at Olgetree Deakins. "Employers need to be really careful about what they put in writing because that will later come back to haunt you."

In October 2003, Reid was removed from his position as director of operations and, though he was allowed to keep the title of director of engineering, he was relieved of the role's responsibilities. By February 2004, Reid was told there was no longer a place for him in engineering. Google maintains that Reid was let go because of job elimination and poor performance, while Reid insists he was told he was not a good "cultural fit" for the company. On Feb. 27, Reid left Google and on July 20, he filed suit for age discrimination.

Google's primary defense against the allegations was the Stray Remarks Doctrine. The term was coined by Supreme Court Justice Sandra Day O'Connor in the 1989 sex discrimination decision in Price Waterhouse v. Hopkins. She described stray remarks as "statements made by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself" and said they were not direct evidence of discriminatory animus, but could be probative of discrimination.

Totality of Circumstances

But in overturning summary judgment for Google, the California Supreme Court ruled that, instead of automatically disregarding any remarks made by nondecisionmakers, judges should look at the totality of the circumstances. If, for instance, the remarks reflect a company atmosphere that promotes discrimination, or if those making the "stray" remarks had influence over decisionmakers, those comments could be significant to the case. The court found this to be the case in Reid.

"There were all sorts of remarks that certainly suggest an atmosphere at Google in which people over 50 were just way too weird to be part of the culture and were suspected of not being quick or energetic enough to contribute," says Richard Levine, a partner at Levine & Baker.

In the wake of Reid, employers will likely have to change their strategy in defending against discrimination cases. But experts agree the most important changes will be to best practices and corporate attitudes.

"I don't think it's an overstatement to say, [there is] a good degree of panic on the management and employer side," Sager says. "I think the lesson is essentially the same sermon we've always been preaching: good management training and good sensitivity training and effective and prompt discipline when you do find folks making inappropriate statements in the workplace will help to paper the trail that management does not endorse or adopt any of that sort of behavior."

Contributing Author

Kayleigh Roberts

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