A California Court of Appeal decided recently in Reid v. Google, Inc., 2007 DJDAR 15443, 2007 Cal. App. LEXIS 1663 (Oct. 4, 2007) several questions important to California employers, including: 1) whether an employee can represent other employees on a “failure to hire” or “failure to promote” discrimination claim where the plaintiff-employee did not formally apply for a position or promotion with the company; and 2) whether an employee could defeat a summary judgment through any of several different means, including passing remarks made by coworkers.

Brian Reid, a 52-year-old employee of Google, Inc., was terminated when Reid’s position was eliminated by Google. Reid alleged that he was told only that he was terminated because of his lack of “cultural fit” in the company. Reid brought suit against Google under various theories, his chief claims being age discrimination and wrongful termination. Reid’s discrimination claims were based both on wrongful termination and discriminatory failure to hire or promote.

Initially, the court helped employers by holding that California’s unfair competition law did not permit Reid to represent a class of persons who were either not hired or not promoted by Google. Although Reid claims he spoke to Google officials about obtaining another position when he was terminated, the court held that that was insufficient to state a claim for a discriminatory failure to hire because Reid did not apply for a position and therefore no application for employment was rejected. This holding helps California employers, as many have already faced lawsuits for discrimination based on an employee’s claim that he or she inquired about a position and was wrongfully rejected. An employer should now have an easier time obtaining dismissal of such claims when no formal application was completed.

However, of greater importance was the court’s holding that Reid could defeat the summary judgment of his wrongful termination and age discrimination claims based on:

1) ageist comments made in passing by coworkers toward the plaintiff, such as “slow,” “fuzzy,” “sluggish,” “lethargic,” “old man,” and “old fuddy-duddy,”

2) unrebutted (but questionable) expert statistical evidence that Google’s bonus awards tended to favor younger employees;

3) the employee’s demotion to a newlycreated, non-viable position (which was eliminated shortly thereafter); and

4) Google’s inconsistent story regarding its reason for terminating the employee.

While the combination of the above factors should make this case distinguishable from more common, less egregious cases, the Reid Court did employers a disservice by discrediting a line of cases that previously helped employers to obtain summary judgment on cases based largely on “stray remarks.” That line of cases, exemplified by Horn v. Cushman & Wakefield W., 72 Cal. App. 4th 798 (1999), states that “a ‘stray’ ageist remark”, such as “this is 1994, haven’t you ever heard of a fax before?”, is insufficient to demonstrate discriminatory animus, especially when uttered by someone unconnected to the decision to terminate the employee. The Reid Court, on the other hand, expressly disapproved Horn, declaring:

We do not agree with suggestions that a “single, isolated discriminatory comment”, or comments that are “unrelated to the decisional process” are “stray” and therefore, insufficient to avoid summary judgment. . . . [S]uch judgments must be made on a case-by-case basis in light of the entire record, and on summary judgment the sole question is whether they support an inference that the employer’s action was motivated by discriminatory animus. Their “weight” as evidence cannot enter into the question.

Reid, 2007 Cal. App. LEXIS 1663, *33- 34 (emphasis added; citations omitted). The above language will serve plaintiffs well in defeating summary judgment motions based on coworkers’ remarks that may even have been made in jest. This opinion underscores the need for employers to train all employees not to make these comments—even outside of termination and hiring discussions, and even when joking.

This opinion also demonstrates the need for employers to involve counsel in termination discussions as early as possible. Google’s supervisors made the mistake of sending emails—without the cover of attorney-client privilege—stating their intention not to move Reid to another department rather than terminate him, including statements by a human resources director such as “you should make sure I am appropriately prepped. My line at the moment is that there is no role for him in the HR organization.” Another director wrote, “We’ll all agree on the job elimination angle.” Such written statements may have been avoided, or at least protected by privilege, with appropriate counseling throughout the termination process. The moral of the story is that a California employer that plans to terminate an employee should at the outset obtain the advice of attorneys who can guide it through the various potential pitfalls of California’s anti-discrimination laws.