California Supreme Court Expands Liability for "Stray Remarks"

The California Supreme Court issued an opinion "http://www.courtinfo.ca.gov/opinions/documents/S158965.PDF") last week in which it refused to disregard stray comments about an ex-employee's age as evidence of discrimination.

The opinion rejected the "stray remarks doctrine" introduced by Justice O'Connor in 1981 (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0490_0228_ZC1.html) in a Supreme Court opinion and sometimes applied by federal courts in discrimination cases in order to exclude discriminatory comments that are made outside the decision-making context. In other words, under the doctrine, comments by co-workers or supervisors who were not directly involved in a particular employment decision are not relevant in determining whether there was discrimination.

In the case, Reid v. Google, a 54-year-old former manager for the Internet search engine giant filed an age discrimination lawsuit under California law, in which he alleged his termination for poor performance and job elimination was really because of age. Mr. Reid's allegations included three categories of derogatory remarks:

  • Co-workers made comments, including calling him "old man" and "old guy" and referred to him as an "old fuddy-duddy."
  • A younger supervisor, who did not play a role in Mr. Reid's termination, called him "slow," "obsolete," and "too old to matter."
  • A third supervisor, who also did not play a direct role in Mr. Reid's termination, told Mr. Reid the reason he was terminated was because he "was not a cultural fit" with the company.

The trial court, applying the stray remarks doctrine, dismissed the case, finding Mr. Reid could not establish discrimination because none of the comments came from those directly involved in the termination decision. However, in last week's opinion, the California Supreme Court stated it would be unfair to ignore remarks by those not directly involved in the termination decision. The court further explained it declined to adopt the stray remarks doctrine because although the co-workers did not take part in employment decisions, they still may have had an influence on the decision-makers.

The Reid opinion highlights the need to ensure that discriminatory comments by anyone, including employees not involved in employment decisions, will not be tolerated.

The Involuntary Transfer of a Pregnant Employee Could Support Bias Claims

An involuntary transfer of a pregnant employee to a less demanding job, without a reduction in pay or benefits, may raise claims of pregnancy and disability discrimination, according to Heather Spees v. James Marine, Inc., (http://www.ca6.uscourts.gov/opinions.pdf/10a0236p-06.pdf). Ms. Spees was hired as a welder, a physically demanding job requiring heavy lifting, climbing ladders and stairs, overhead handling of equipment, and working in hot temperatures. Welders also are exposed to fumes, dust, and organic vapors and are provided with respirators to wear while working.

Shortly after her employment began, Ms. Spees became pregnant. Two years earlier, she was pregnant but had a miscarriage. After she told her foreman about her pregnancy, he expressed concern about the job demands and exposure to chemicals and told her to see her physician to determine what she could and could not do. Her physician recommended a respirator but issued a return to work certificate with no restrictions on her ability to weld. Nevertheless, the foreman had concerns regarding her pregnancy and ability to safely do the job and was concerned about her earlier pregnancy complications.

The foreman requested the employee get a second note from her physician mentioning toxic fumes and limiting her to light duty, which she did. Although the second note read "patient requires light duty and avoid toxic fumes," the physician later stated that there was no medical reason to limit her job duties, but that he wrote the note to allay some of her concerns, not knowing that it was the foreman who had requested the second note. When the employee presented the foreman with the second note, he stated it had already been decided she could no longer weld. Despite voicing her desire to continue welding, Ms. Spees was involuntarily transferred to the tool room, which she found to be just as physically demanding and hot. The main differences with the new position were that she would not be exposed to toxic fumes from welding and did not have to perform overhead work.

The employee sued, claiming, among other things, that she was transferred to the tool room because of her pregnancy and because she was perceived as having a disability. The Court, in reversing the dismissal of her claims, stated that in many ways the tool room could be seen as a demotion because it did not require any specific training or skill, was less challenging, and the employee considered it more boring. The tool room job also involved a change to the night shift, which adversely affected the employee's ability to raise her daughter as a single mother. Thus, her transfer resulted in her working in a less challenging, lower-skilled position and was on a more inconvenient shift. The Court also stated there was evidence that her pregnancy was at least a motivating factor, if not the motivating factor, in her transfer to the tool room.

The Court noted evidence showing that the company, instead of undertaking an "objective" evaluation of the employee's ability to do the welding job while pregnant, "subjectively" viewed her pregnancy as rendering her unable to weld. With respect to her disability discrimination claim, the Court stated that there was evidence that by placing her in the tool room, the company perceived her as having a disability.

This case serves as a reminder that, even if intentions are laudatory, when assessing an employee's ability to do a job in light of a pregnancy or other medical condition, employers must conduct a thorough and objective evaluation of the employee's ability to do the job and whether any reasonable accommodations are required.

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