It has been common wisdom among employers in New York that isolated or “stray” remarks of a decision-maker alone are not probative of discrimination. Indeed, employers faced with discrimination claims frequently have moved for summary judgment on the ground that such “stray remarks” were insufficient evidence to support discrimination claims. A recent ruling by the Second Circuit Court of Appeals, which clarified what it deemed a misconception as to the legal term “stray remarks,” may make it more difficult to obtain dismissal of discrimination claims when an employee proffers evidence of isolated jokes or comments.

In Tomassi v. Insignia Financial Group, Inc., 478 F.3d 111 (2d Cir. 2007), the plaintiff, Patricia Tomassi, a supervisor of resident services at an apartment complex, alleged that her employment was terminated because of her age. Tomassi alleged that throughout the course of her employment with Insignia, her supervisor made frequent references to her age. She claimed, for example, that he would begin sentences with, “[i]n your day and age,” suggest that Tomassi related well to and “could understand the mentality of ” residents who were senior citizens and repeatedly asked Tomassi if she would be better off retiring so she could “take time off to rest.” The United States District Court for the Southern District of New York granted the employer’s motion for summary judgment, finding that the numerous age-related comments constituted “stray remarks” and were therefore insufficient evidence to support a claim of age discrimination.

The Second Circuit reversed, holding that the District Court failed to apply the correct standard and ruled that the remarks were “legally sufficient to sustain a reasonable inference that he [the supervisor] was motivated by age discrimination in terminating Tomassi.” The Second Circuit held that the remarks should not have been disregarded because they were classified as “stray”; rather, the District Court should have considered whether the remarks evinced a discriminatory state of mind. The closer the remark’s relation to the alleged discriminatory behavior, the more probative that remark will be. On the other hand, the more remote and oblique the remarks are in relation to the employer’s adverse action, the less they tend to show that the action was discriminatory. For example, remarks made by someone other than the decision-maker would be less likely to show that the decision-maker was motivated by discrimination. Similarly, remarks that are not proximate in time to the adverse employment decision are less likely to be related to such a decision.

The Second Circuit held that even inoffensive age-related remarks could be probative of age discrimination. For example, the remarks by Tomassi’s supervisor that Tomassi was wellsuited to work with seniors, while not offensive, tended to show that he was motivated by an assumption that, due to her age, Tomassi was not well-suited to deal with the younger tenants he was hoping to attract to the complex.

Employers must be aware that jokes and comments related to protected characteristics could be used by an employee whose employment is adversely affected to support a claim of discrimination. Employers can use sensitivity training to deliver the message that seemingly benign comments may still be inappropriate or degrading. If an employer learns that potentially inappropriate comments have been made, it is important to investigate promptly and, if appropriate, impose discipline on the individual who made the remarks. Thorough documentation of the investigation and its outcome can help to avoid or minimize liability.