Taking in Strays: A Critique of the Stray Comment Doctrine in Employment Discrimination Law
Kerri Lynn Stone
Florida International University (FIU) - College of Law
Missouri Law Review, Vol. 77, No. 1, 2012
Florida International University Legal Studies Research Paper No. 12-18
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. 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.”’ 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.
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. The United States Supreme Court looks to have unwittingly created this doctrine in a decision over twenty years ago, 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. 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, to permit a plaintiff's case to go forward or to sustain a jury verdict.
This Article traces the genesis of this misguided doctrine, its proliferation, and it’s many flaws. 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.
Number of Pages in PDF File: 50
Keywords: Stray comments doctrine, employment discrimination, Title VII, Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967 (ADEA), Price Waterhouse v. Hopkins, Reeves v. Sanderson Plumbing Products
Date posted: September 25, 2012
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