Courts - California State Supreme Court hears oral arguments in 'stray remarks' case Ex-manager is suing Google for age discrimination

By Sylvia Hsieh The Daily Record Newswire The California Supreme Court heard oral arguments last week on whether it should adopt the "stray remarks" doctrine in employment discrimination cases. That doctrine allows courts to deem certain discriminatory remarks too remote or isolated and award an employer summary judgment. The case involved Brian Reid, a 54 year-old manager who was fired from Google. He claimed that he was told he was not a "cultural fit," that the corporate culture was biased against older workers and that he was subjected to numerous ageist comments, including being called "slow," "fuzzy" "sluggish," "too old to matter," and "obsolete" by managers and "old man" and "old fuddy-duddy" by co-workers, who joked that his office placard should be placed on an LP instead of the CD case that others used. Google argued these comments were stray remarks not made by the decision-maker, not specifically age-related and not related to Reid's firing. A trial court granted summary judgment for Google, finding the remarks were insufficient to raise a permissible inference that age was a motivating factor in Reid's termination. An appeals court reversed, finding that the stray remarks rule allows courts to impermissibly take over the jury's factfinding role. In this case, it said there were triable issues for a jury based on evidence that ageist remarks were directed towards the plaintiff and some remarks were made by people involved in the decision to terminate him, along with corroborating statistical evidence showing a significant correlation between age and negative performance reviews at Google. At oral arguments before a packed state supreme court, Paul Cane, a partner at Paul Hasting in San Francisco representing Google, was asked three times by Justice Ming Chin whether he wanted the court to adopt the stray remarks doctrine. Cane said it depended on how the doctrine is defined, because courts have applied it in a wide variety of ways. "You are so right," said Chin, drawing laughter. Avoiding the term "stray remarks," Cane instead argued that the court should recognize a rule that discriminatory remarks of insufficient "heft" should not be considered by a court. In this case, Cane argued, the plaintiff was terminated because his job was eliminated, and the fact that Reid was hired when he was 52 and fired when he was 54 did not support a rational inference of discriminatory intent. Justice Carlos Moreno asked whether a "stray remarks" rule would allow courts to usurp the function of a jury. Cane responded that a court wouldn't usurp that role if it was merely determining that discriminatory remarks were not hefty enough to present a triable question of fact for a jury. He added that allegedly discriminatory comments made by non-decision-makers should not be considered. But Moreno questioned whether it's always so clear that a decision-maker has not relied on comments made by others who didn't participate in the firing. Justice Kathryn Werdegar asked whether it would make more sense to admit the remarks and then allow the proper relevant weight to be given to them. "I think they should be excluded, but [even if considered] you would reach the same result," Cane replied. Paul Killion, a partner with Duane Morris in San Francisco, represented the plaintiff. He argued that adopting the stray remarks doctrine would essentially eliminate all circumstantial evidence in discrimination cases. He urged that each case depends on the circumstances. "The court of appeals got it right. You have to put [the remarks] in context. ... You can't have a blanket rule that excludes a whole class of evidence," Killion argued. In this case, he said, there was a lot more evidence than just remarks by non-decision-makers, including e-mails from Google co-founder Larry Page, who was involved in the termination, saying he prefers younger workers, and evidence that the plaintiff was told at his termination he was not a "cultural fit." Chief Justice Ronald George asked whether the fact that Reid was hired at 52 and fired at 54 contradicted an inference of discrimination. Killion said the evidence indicated Google was a young start-up and initially needed older workers to get capital funding. He noted an e-mail sent to one of Google's 20-something co-founders after Reid was fired that stated, "Don't worry, I won't be hiring another senior." George then asked whether an employee might fail to be a "cultural fit" for reasons besides age. "Could it be someone doesn't explore new ideas or is not imaginative or forward thinking, whatever his or her age?" he asked. "We don't think so," responded Killion. Cane argued on rebuttal that Google's culture has nothing to do with age, but is defined as: "Question everything. Find the best answer. Don't take the easy way." But Killion noted that the plaintiff introduced testimony from a Google recruiter who said that when she attended hiring meetings the term "cultural fit" was used often. George than asked whether "cultural fit" was a "deliberate subterfuge, instead of saying someone is 'too old'?" "Yes," said Killion. "That's the difficulty in employment cases. They often rely on circumstantial evidence." A decision from the court is expected within 90 days. Published: Tue, Jun 1, 2010

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