In Reid v. Google, Inc., the California Supreme Court confirmed that virtually anything an employer says can and will be used against the company in an employee suit. Even “stray remarks” – those made outside the formal process of evaluating an employee or candidate – are admissible to show potential discrimination. This new case will probably make it more difficult for employers to obtain pretrial dismissal of discrimination claims. It also is a strong reminder that employers and managers need to carefully watch what they, and their subordinates, say and do in the workplace.

Facts of Reid

Brian Reid began working for Google in June of 2002, when he was 52 years old. He reported directly to a 55-year-old manager, and also interacted regularly with the CEO, a division vice-president, and even the founders of Google, all of whom were younger (some substantially so) than Reid. Reid received good reviews for his work. His reviews also said that Google was “different,” and Reid had to get used to the culture of “younger contributors” and “inexperienced first line managers.” Others at Google, including the VP and Reid’s coworkers, regularly made age-related remarks to Reid, although never in the evaluation context. For instance, the VP told Reid that his opinions were “obsolete” and “too old to matter;” that he was “slow,” “sluggish,” and “lethargic;” and that he “lacked energy.” Coworkers called Reid an “old man” and an “old fuddy-duddy,” and made other age-related comments.

Ultimately Reid was let go. Google asserted he was terminated after his job was eliminated; Reid contended he was told the reason was a lack of “cultural fit.” He sued Google for age discrimination. Google moved for summary judgment, arguing that it had a legitimate business reason for Reid’s termination. Reid opposed, quoting the age-related derogatory comments and claiming that Google’s “job elimination” assertion was a pretext to cover age discrimination. The trial court granted the motion and entered judgment in Google’s favor.

The Supreme Court reversed and ordered the case back to the trial court. The central issue addressed by the court was whether the so-called “stray remarks” made by non-decision-makers outside the context of Reid’s termination were admissible to prove age discrimination. The court held they were, and that they created a question for trial on whether Google’s justification was pretextual. In doing so, the court rejected the analysis of several federal courts, each of which had held that stray remarks were insufficient to show discrimination. Instead, the court held, California courts must examine the entire record to determine whether a reasonable jury, looking at all of the evidence – including the “stray remarks” – could find discrimination occurred. If so, the case must go to the jury.

Impact of Reid

Reid will certainly make it harder for employers to get discrimination cases thrown out before trial. Although the Supreme Court left room for a trial court to disregard stray remarks in appropriate cases, it gave little practical guidance to judges about how to tell what those cases might look like. The Reid case reversed a trial judge’s decision, and it’s not farfetched to think that other judges will want to avoid that experience by letting the evidence in and denying the motion. The Supreme Court’s admissibility analysis would also appear to be just as applicable to a trial, which means that more “stray remarks” evidence will be heard by juries in discrimination trials in the future. Both developments can only be viewed as favorable to plaintiffs and problematic for employers and their counsel.

Employer Action Items

In light of Reid, Employers should be proactive and diligent about enforcing workplace respect policies (and those who don’t already have such a policy should implement one immediately). There should be no tolerance for any arguably derogatory comments, from anyone, in any context. Supervisors should review company discrimination policies, and should observe their subordinates’ interactions (including electronic and other communications) and act promptly on any that appear biased. All employees should be periodically trained on appropriate behavior in the workplace, and on where and how to report violations.