The “Stray Remarks” Doctrine in Employment Discrimination Law

Frequently, plaintiffs in employment discrimination cases will attempt to prove discrimination by reference to comments or remarks that allegedly demonstrate discriminatory intent. For the purpose of evaluating such evidence, courts have developed the “stray remarks” doctrine.

The court in Luka v. Bard College, 2017 WL 2839641 (SDNY June 29, 2017) (J. Carter) recently explained:

As a general matter, verbal comments may raise an inference of discrimination, but not where they lack a causal nexus to the termination decision. … Isolated comments, while potentially offensive, do not lead to an inference of discriminatory intent. To determine whether a particular comment is probative of discriminatory animus or is a mere stray remark, a court considers: (1) who made the remark, i.e., a decisionmaker, a supervisor, or a low-level co-worker; (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark …; and (4) the context in which the remark was made, i.e., whether it was related to the decisionmaking process. (Emphasis added.)

The application of the “stray remarks” doctrine – notably, the considerations of who, when, content and context – is fact-specific.

For example, in the Luka case, the court – applying these factors – held that comments made during plaintiff’s tenure review were “stray remarks that do not give rise to an inference of … discrimination”, where (e.g.) the comments were not made by the ultimate decisionmaker (although they were made by one of plaintiff’s supervisors), and the “alleged remark was neither made close in time to the decision nor in relation to the specific employment decision challenged.” Luka, 2017 WL 2839641, at *6.

And in Batiste v. City University of New York, 2017 WL 2912525 (SDNY July 7, 2017), the court held:

Here, Plaintiff’s allegation that Dean Mogulescu stated that Plaintiff needed to be supervised by a black woman fails to raise an inference of discriminatory motivation. Plaintiff does not allege that Dean Mogulescu was a decision-maker with respect to Plaintiff’s termination, and the Amended Complaint is silent concerning the temporal proximity of the remark to Plaintiff’s termination. Although a reasonable juror could view the remark as discriminatory, the Amended Complaint provides no context for the Dean’s statement nor does it allege how, if at all, the statement was related to Defendants’ decision to terminate Plaintiff. In short, Dean Mogulescu’s statement appears to be a stray remark that lacks any causal nexus to Defendants’ decision to terminate Plaintiff. (Emphasis added.)

In other cases and on different facts, courts reach the opposite conclusion.