What is the stray remarks doctrine? An explanation and a defense.

• Author: Litman, David M.

CONTENTS INTRODUCTION I. PROVING DISCRIMINATION: A BRIEF HISTORY A. The Development of the Burden-Shifting Framework B. Direct Evidence vs. Indirect Evidence of Discrimination II. THE STRAY REMARKS DOCTRINE A. What Is a Stray Remark? 1. Who Made the Remark? 2. Relatedness of the Remark to the Decision (Context) 3. Is the Comment Vague or Ambiguous? (Content) 4. Is the Remark Temporally Proximate to the Employment Decision? 5. How Many Factors Must Exist? B. What Is the Significance of a Remark Being Labeled as Stray? III. The Critiques of the Stray Remarks Doctrine A. The Social Science Critique 1. Disparate Impact Covers Subtle Discrimination and Implicit Biases 2. Implicit Bias Does Not Show a Discriminatory Motive B. The Role of the Judge 1. Determining Sufficiency 2. Determining Admissibility a. Questions of Relevancy b. Balancing Probative Value with the Rule 403 Concerns c. Preventing Impermissible Character Evidence IV. SO WHAT REALLY IS THE STRAY REMARKS DOCTRINE? "Every person in this room has endured a slight. Every person. Somebody has said something that has hurt their feelings or did something to them--left them out." *

INTRODUCTION

In 1989, the Supreme Court decided Price Waterhouse v. Hopkins, (1) which dealt with gender stereotyping and mixed-motive analyses in employment discrimination law. Soon afterward, Congress amended Title VII (2) to eliminate a key holding in the opinion dealing with evidentiary burdens in mixed-motive analyses. (3) While the Price Waterhouse opinion had but a brief rule on that end, two sentences found in Justice O'Connor's concurrence have taken a life of their own:

Thus, stray remarks in the workplace, while perhaps probative of sexual harassment, cannot justify requiring the employer to prove that its hiring or promotion decisions were based on legitimate criteria. Nor can statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself, suffice to satisfy the plaintiff's burden in this regard. (4) These words have resulted in what has been called the "Stray Remarks Doctrine." What this doctrine is, precisely, has been unclear for quite some time, but it has come into play repeatedly when courts have considered the admissibility or sufficiency of evidence of discriminatory remarks in employment discrimination suits, particularly in disparate treatment cases. In Price Waterhouse, the discussion of stray remarks was in the context of a broader discussion of direct evidence and mixed-motive analyses. (5) Since then, the doctrine has expanded in terms of the context it appears in, as well as the factors that are considered under the doctrine. (6) While virtually every court takes into consideration the factors alluded to by Justice O'Connor, namely whether a decision maker was the speaker and whether the remark was related to the decision, (7) courts also look at factors such as temporal proximity and the content of the remark. (8) When the factors align under varying circumstances, courts have disregarded evidence of such discriminatory remarks, whether on a motion for summary judgment, a motion in limine, or in any other circumstance dealing with the sufficiency and admissibility of evidence.

The growth of the Stray Remarks Doctrine in prevalence and scope has not come without great confusion and its fair share of criticism from academics (9) and even courts. (10) Determining which factors matter and to what degree they matter can be a challenge, even within the circuits, as the law develops. (11) Further complicating matters, courts have not always been clear regarding why they disregard remarks. Often an opinion will only state that the remark meets the factors to be a stray remark but will not elaborate on why that label allows the court to disregard the remark. Perhaps as a result of this lack of clarity, criticisms have sprung from various corners, alleging that the Stray Remarks Doctrine is inappropriate because a judge is improperly usurping the role of the jury (12) or because emerging social science suggests the doctrine may be excluding important evidence of discrimination. (13) Certainly courts have not always been correct in their exclusion of evidence. (14)

The Stray Remarks Doctrine is complicated in its application and yet simple to understand once it is put into context. In Part II, a brief background of the development of employment discrimination law will put into context why the Stray Remarks Doctrine matters and what role it plays in cases involving disparate treatment claims. In Part III, the factors that make up the doctrine will be analyzed, as well as their significance in the development of the doctrine and in proving the ultimate question of disparate treatment cases. In Part IV, the two common sources of criticism of the doctrine, stemming from the social science perspective and from those concerned over the frequent use of summary judgment, will be considered and addressed. Furthermore, Part IV will explain why courts are correctly disregarding remarks in most circumstances. Finally, Part V will explain simply what the doctrine really consists of. This Note argues that despite confusion and criticism, courts are, for the most part, correctly disregarding evidence of discriminatory remarks by applying rules of procedure and evidence. Thus, the Stray Remarks Doctrine is simply a name given to the application of rules of sufficiency (15) and admissibility (16) to discriminatory remarks in disparate treatment cases. (17)

This Note focuses largely on disparate treatment in Title VII cases. Some Age Discrimination in Employment Act (18) cases will also be discussed, and some cases will involve other theories, such as retaliation, harassment, or disparate impact. For purposes of clarity and brevity, some distinctions between a disparate treatment theory under Title VII and other theories under similar legislation will be set aside. Further, although it has been noted that there is a difference between discriminatory "intent" and "motive," this Note assumes that when "discriminatory intent" is used, "discriminatory motive" is meant. (19)

1. PROVING DISCRIMINATION: A BRIEF HISTORY

   In order to understand why the Stray Remarks Doctrine matters, a look through employment discrimination jurisprudence is necessary. Title VII, a part of the Civil Rights Act of 1964, has a purpose "to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens." (20) Justice Powell in McDonnell Douglas Corp. v. Green (21) expanded upon this, stating that "it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise." (22) To combat such a wide range of discrimination, a number of tools have been developed by Congress and the courts. Perhaps most well-known are those under a "disparate treatment" theory--cases in which the plaintiff seeks to show that the employer acted with discriminatory motive in making a job-related decision. (23) Proving motive is not always necessary; plaintiffs may also show how a facially neutral employment practice is having adverse effects on a protected group and win a suit under Title VII under the "disparate impact" theory. (24) Since discriminatory remarks are used (typically) to show discriminatory intent, the Stray Remarks Doctrine is relevant mostly to the disparate treatment theory. A comparison between the purposes of the two theories, however, is necessary to understand the Stray Remarks Doctrine and so will be explored in Part III.A. 1. For purposes of this Note, however, the focus will largely be on disparate treatment. (25)

   1. The Development of the Burden-Shifting Framework

      The modern approach to disparate treatment cases originates, in large part, from McDonnell Douglas v. Green, where the Supreme Court laid out the process of proving a disparate treatment case and, in particular, a three-step burden-shifting analysis. The first step is that the plaintiff must establish a prima facie case of discrimination. (26) The elements of a prima facie case vary slightly depending on the adverse employment action alleged but generally include (1) plaintiff is a member of a protected class, (2) plaintiff is qualified for the position, (3) plaintiff suffered an adverse employment action, and (4) circumstances give rise to an inference of discrimination. (27) The burden at the prima facie stage is not an onerous one and need only be shown by a preponderance of the evidence. (28) The purpose of this stage is to "eliminate] the most common nondiscriminatory reasons for the plaintiffs rejection." (29) Further, it creates "an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." (30)

      Once a plaintiff has established her prima facie case, the "burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." (31) In Texas Department of Community Affairs v. Burdine, (32) the Supreme Court emphasized that the burden that shifts to a defendant at this stage is only one of production. The burden of persuasion always remains with the plaintiff. (33) The defendant, however, still must set forth admissible evidence that is sufficient to raise a genuine issue of material fact regarding whether it discriminated against plaintiff. (34)

      The final stage of the McDonnell Douglas analysis is that once the defendant has met her burden of production, the plaintiff must establish that the defendant's proffered legitimate, nondiscriminatory reason is mere pretext for discrimination. (35) A plaintiff may prove pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's...