Employment lawyers and human resources professionals are undoubtedly familiar with the concept of “stray” comments in discrimination disputes — cases in which an employee or former employee accuses another co-worker or a manager of making occasional lewd jokes, slurs or offcolor remarks about a person’s race, age, national origin, gender, or other protected characteristics. To the extent such comments were made, employers often invoke a stray comments defense to challenge their evidentiary value, arguing that these isolated and sporadic comments, even if made, have no legal significance and cannot be used to support a finding of discrimination.

Not so fast, the Second Circuit Court of Appeals recently held. In Tomassi v. Insignia Financial Group, Inc., __F.3d__, 2007 WL 495314 (2d Cir. Feb. 16, 2007), an age discrimination case, the Second Circuit reversed the district court’s grant of summary judgment in favor of the defendantemployer. The district court had characterized alleged agerelated comments made by the plaintiff ’s direct supervisor as stray and, consequently, held that there was insufficient evidence to support a reasonable finding that plaintiff was terminated because of her age. Specifically, the district court concluded that stray remarks — such as those allegedly made by plaintiff ’s supervisor — have been held not to be sufficient evidence to support discrimination claims.

Recognizing that there had been some confusion in the Second Circuit’s precedents with respect to the significance of stray comments, the Second Circuit in Tomassi held that the district court applied the incorrect legal standard. Even where comments are determined to be isolated, the Second Circuit ruled that courts must consider “all the evidence in the light most favorable to the plaintiffs to determine whether it could support a reasonable finding in the plaintiff’s favor.” Consideration of “all the evidence” critically includes whether the individual alleged to have made the comments is the decision-maker, as well as the timing of the alleged comments in relation to the alleged discriminatory action. The Second Circuit explicitly stated that defining comments as stray in no way means that they should then be disregarded and given no evidentiary weight.

Further, the Second Circuit rejected the district court’s view that the probative value of the supervisor’s alleged remarks depended on the offensiveness of the alleged comments. Rather, the Second Circuit explained, “[i]noffensive remarks may strongly suggest that discrimination motivated a particular employment action.” For example, while the supervisor’s alleged comment that plaintiff was “well suited to work with seniors” may not have been objectively offensive, it had a strong tendency in light of all the circumstances — including other alleged comments made by the supervisor and the fact that plaintiff was replaced by an individual 38 years younger — to show that the supervisor believed that, because of plaintiff’s age, she was not well-suited to work with the younger clientele that the supervisor aimed to attract. The Second Circuit concluded that a jury could reasonably find based on the entire evidentiary record that the supervisor was motivated by age discrimination in terminating plaintiff.

Where does the Tomassi decision leave New York employers seeking to invoke the stray comments defense? Certainly, the Second Circuit continues to recognize that not all alleged comments relating to a protected class can or should support a claim of discriminatory conduct. However, in light of Tomassi, employers should recognize that courts may be more reluctant to rely solely upon the stray comments defense to dismiss discrimination cases. Analysis of who made the alleged remarks, the content of such alleged remarks in light of all the circumstances, and how close in time the alleged comments were made to the alleged adverse employment action should inform employers as to the likely strength of a stray comments defense. Analyzing these factors will also help employers assess potential exposure in such cases.