Taking in strays: a critique of the stray comment doctrine in employment discrimination law.

• Author: Stone, Kerri Lynn

1. Introduction

   A decision maker repeatedly used the word "boy" when addressing two African-American employees, who then did not receive a promotion for which they had applied. (1) A Puerto Rican doctor whose employer did not renew her contract proffered testimony that her employer's Director of Clinical Services said, "'Dominican doctors were better' than 'the other physicians who were there, who were Puerto Rican.'" (2) In each case, despite the fact that a jury rendered a verdict for the plaintiff, the court held that the comments were insufficient as a matter of law to evince employment discrimination. (3)

   Significantly, in each of these cases, the court used an increasingly amorphous and insidious doctrine called the "stray comments" or "stray remarks" doctrine to wholly or partially devalue what was alleged to be probative evidence. (4) The United States Supreme Court looks to have unwittingly created this doctrine in a decision over twenty years ago, (5) and it has operated since then, unchecked and hardly discussed, to aid courts in holding that a revealing or indicative comment that an employment discrimination plaintiff proffers is insufficient as a matter of law (as opposed to merely a matter of fact) to prove the discrimination alleged. (6) Moreover, courts have interpreted the word "stray" to mean different things, including, but not limited to, too far removed in time, too out of context, and too isolated, as a matter of law, (7) to permit a plaintiff's case to go forward or to sustain a jury verdict.

   Indeed, the dictionary defines the word "stray" as:

   1: having strayed or escaped from a proper or intended place

   2: occurring at random or sporadically

   3: not serving any useful purpose : unwanted 8

   The mere fact that a discriminatory comment is contextually or temporally removed from an adverse employment action should not serve automatically to divest that comment of all or most of its evidentiary value. Further, the fact that a remark is isolated or sporadic, rather than part of a pattern of comments, may mean that it belies, rather than disproves an undisclosed mindset of bias.

   To be sure, various facets of how, by whom, and when a comment is made might tend to attenuate evidence. While some evidence, upon a full and proper examination of all the surrounding circumstances, might be insufficient, irrelevant, or unpersuasive as a matter of law, judges too often substitute their personal assessments of evidence for the assessments of reasonable jurors. This behavior leads to the premature foreclosure of plaintiffs' employment discrimination cases and to the granting of judgments as a matter of law for defendants after some plaintiffs have procured jury verdicts in their favor. Courts also arrive at "stray" determinations in a wide variety of circumstances and often do so without much analysis.

   The so-called "stray comments" or "stray remarks" doctrine finds its origins in a United States Supreme Court concurrence penned by Justice Sandra Day O'Connor. (9) However, promulgated and proliferated by lower courts at a great rate, the "doctrine" may have been mistaken, misplaced, and misapplied from the outset. Likely, the "doctrine," taken out of its context by these courts, was not intended to be set forth as such by Justice O'Connor. Justice O'Connor looked to be making a very specific delineation in her concurrence, not aiming to cordon off whole categories of potentially probative evidence as worthless in the context of adjudicating a motion for summary judgment. (10) The doctrine's proliferation at a near exponential rate, however, is undeniable. By way of illustration, a Westlaw search for the term "Title VII" and the word "stray" within three words of the words "comment," "comments," "remark," or "remarks" yields no results for cases decided prior to 1989--the year that the United States Supreme Court issued Price Waterhouse v. Hopkins--in Westlaw's "allfeds" database. For the year 1989, however, six hits come up, and for the years from then until 2010, the hits increase as shown below:

   Year No. of Hits Year No. of Hits 1989 6 2000 126 1990 12 2001 115 1991 10 2002 117 1992 22 2003 102 1993 29 2004 113 1994 48 2005 146 1995 65 2006 180 1996 80 2007 207 1997 105 2008 181 1998 113 2009 186 1999 114 2010 204 This Article traces the genesis of this misguided doctrine, its proliferation, and its many flaws. (11) It explains what the doctrine has come to mean and which facets of a comment can render it "stray" as a matter of law. Part II evaluates this unwieldy and untenable doctrine and its haphazard and misguided application over the past two decades. Specifically, it was never intended to be a formal doctrine. As employed by courts, the term "stray" means too many things and is too ambiguous for the doctrine to be coherent or effective. Moreover, courts ascribe varying degrees of significance to the designation "stray," with some courts using it to deem evidence to be circumstantial rather than direct (and thus invariably insufficient), and other courts using it to deem potentially viable evidence worthless as a matter of law.

   This Article argues that the stray comments "doctrine" does more harm than good and that those courts wishing to grant a defendant summary judgment on a claim should have to do so by looking at the totality of the circumstances, rather than summarily using a single facet of a comment to dismiss it from consideration. It points out that the doctrine and its premises fail to comport with even a basic understanding of social science and how people foment, act upon, and reveal discriminatory bias. Interestingly, another judge-made doctrine built into employment discrimination law--the same actor inference--stands in stark asymmetry with the stray comments doctrine. The former presumes that attitudes evinced inhere within people for years at a time while the latter declares that no plausible nexus exists between expressed animus or other type of bias and an action taken mere days or weeks later.

   This Article draws attention to a phenomenon that, used unsparingly over two decades ago, has grown unfettered into a grave problem for employment discrimination plaintiffs. It calls for a much-needed return to an adjudication of employment discrimination cases that comports with the summary judgment standard and factors in all potentially relevant evidence, construing all facts in the light most favorable to the non-movant, who usually is the plaintiff.

2. Background: the Stray Comment Doctrine

   Although the so-called stray comments or stray remarks doctrine maps out onto a case at several potential junctures--for example, when a court decides a motion in limine asking that evidence be excluded from a trial or when it decides a post-trial motion (12)--this Article focuses on the doctrine as it operates at the summary judgment stage, usually to foreclose a plaintiff's case.

   1. Title VII and Frameworks

      Federal antidiscrimination law was passed in this country against the backdrop of a compelling need for certain historically discriminated-against groups to be afforded access, entree, and inclusion into public life, including employment. The two primary statutes whose jurisprudence this Article examines are Title VII of the Civil Rights Act of 1964 (13) and the Age Discrimination in Employment Act of 1967 (ADEA). (14)

      Title VII makes it:

      [A]n unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. ... (15) If a plaintiff brings a disparate treatment claim under Title VII, she may proceed by demonstrating either that discrimination was the sole motivating factor behind an employment decision, or, pursuant to the 1991 amendments to the Act, that it was a "motivating factor." (16) In the latter case, however, the plaintiffs remedies may be limited. (17)

      McDonnell Douglas Corp. v. Green laid out the burden-shifting framework for discrimination claims under Title VII. (18) Under this framework, a plaintiff seeking to establish that she has been discriminated against with respect to the terms or conditions of her employment based on her protected class status must first make out a prima facie case, which will create an initial inference that she experienced unlawful discrimination. (19) The precise form that a prima facie case will take will vary with the case, but most prima facie cases essentially allege: (1) that the plaintiff is a member of a protected class; (2) that she was qualified for and (where applicable) applied for the position or promotion at issue; (3) that she suffered an adverse action, such as a termination, non-selection, or demotion; and (4) that this adverse action occurred under circumstances giving rise to a legitimate inference of protected class-based discrimination. (20) Such circumstances may include the position going to a non-class member. (21) This prima facie case sets up a rebuttable presumption in favor of the plaintiff's claim. (22) At that point, the burden shifts to the defendant-employer to articulate a legitimate, nondiscriminatory reason for the adverse action. (23) Finally, the burden shifts back to the plaintiff, who carries the ultimate burden of persuasion, to show that the reason proffered by the defendant is a mere pretext for discrimination. (24)

      In 1989, the Supreme Court held that an employee may show that an employment decision was made based on both legitimate and illegitimate reasons; (25) Congress codified this "mixed-motive" theory in the Civil Rights Act of 1991. (26) In the absence of clear Supreme Court guidance as to the precise definition of "direct evidence," and despite the term's frequent use by litigants and courts in employment discrimination cases, some courts...