United States: What Did They Say? Deciphering When Remarks Are Evidence Of Discriminatory Intent Is A Difficult Task

Originally published in New York Law Journal

A well-known expression says, "If it looks like a duck, quacks like a duck, and swims like a duck, it must be a duck." One should not be misguided by simply relying upon this proverbial type of analysis when assessing an employer's exposure in a discrimination case. There are times when a verbal remark looks discriminatory and sounds discriminatory, but does not demonstrate that an employer made an adverse employment decision because of a discriminatory intent. On the other hand, a seemingly neutral remark—for example, that an older employee "works well with senior citizens"—may be admissible evidence of an employer's discriminatory intent. Courts have characterized remarks that do not directly evidence an employer's discriminatory intent as "stray remarks."

Deciphering when a remark is evidence of an employer's discriminatory intent or when it is merely a stray remark is a difficult undertaking, requiring consideration of the particular facts and circumstances presented.

'Burden-Shifting' Formula

To establish a prima facie case of discrimination based upon disparate treatment under either Title VII or New York law, a plaintiff must show that he: (1) belonged to a protected class, (2) was qualified for the position he held or sought, and (3) suffered an adverse employment action (4) under circumstances giving rise to an inference of discriminatory motivation. Terry v. Ashcroft, 336 F3d 128, 138 (2d Cir. 2003); Farias v. Instructional Sys., Inc., 259 F3d 91, 98 (2d Cir. 2001); Cruz v. Coach Stores, Inc., 202 F3d 560, 565 (2d Cir. 2000).

After a plaintiff has established a prima facie case of discrimination, the burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. If the employer does so, the burden shifts back to the plaintiff to prove that the employer's stated reason is merely pretextual and that discrimination was an actual reason for the adverse employment action. Reeves v. Sanderson Plumbing Prods., Inc., 530 US 133, 143 (2000).

The ultimate question is whether the employer intentionally discriminated. Proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason...is correct." Id. at 147. It is not enough "to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." Id. Thus, it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. Id. See also Classic Coach v. Mercado, 722 NYS2d 551 (2d Dept. 2001) (adopting Reeves under New York law).

A verbal remark constitutes evidence of discriminatory motivation when a plaintiff demonstrates that a nexus exists between the purportedly discriminatory remark and an employer's adverse employment decision regarding the plaintiff. Schreiber v. Worldco, LLC, 324 FSupp2d 512, 518-19 (S.D.N.Y. 2004). However, the mere utterance of another employee's overtly improper remark does not, alone, guarantee that such a remark is admissible evidence of an employer's discriminatory intent. A purportedly discriminatory remark can be a mere stray remark that does not support an inference of discriminatory motivation. Danzer v. Norden Sys., Inc., 151 F3d 50, 56 (2d Cir. 1998).

The relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decisionmaker was motivated by assumptions or attitudes relating to the protected class. Indeed, even inoffensive remarks may strongly suggest that discrimination motivated a particular employment action. Tomassi v. Insignia Fin. Group, Inc., 478 F3d 111, 116 (2d Cir. 2007). For example, a supervisor's comment that an older employee was well-suited to work with seniors is not offensive; however, it has a tendency in certain circumstances to show that the supervisor may believe, because of the employee's age, that she was not well-suited to deal with the younger customers. Id.

The U.S. Supreme Court addressed the stray remark doctrine in Reeves v. Sanderson Plumbing Prods., Inc., 530 US 133, when considering the discriminatory intent of a decisionmaker's own prior remarks which were not related to the decision process. Roger Reeves alleged that he was terminated at age 57 because of age discrimination. Defendant asserted that Mr. Reeves was terminated because of his poor performance. Mr. Reeves testified that his supervisor said that Mr. Reeves: "was so old [he] must have come over on the Mayflower" and "was too damn old to do [his] job." This supervisor subsequently decided to terminate Mr. Reeves' employment.

The U.S. Court of Appeals for the Fifth Circuit found that the supervisor's remarks were stray remarks because Mr. Reeves failed to demonstrate a causal link between the remarks and the subsequent termination decision. However, the U.S. Supreme Court stated that, because of "additional evidence that [the supervisor] was motivated by age-based animus and was principally responsible for [Mr. Reeves'] firing," there was a sufficient basis to find that the employer had discriminated. Id. at 151. Thus, a decisionmaker's own prior remarks—even if not made as part of the challenged employment decision—will typically evidence discriminatory motivation.

The U.S. Court of Appeals for the Second Circuit in Tomassi v. Insignia Fin. Group, Inc., 478 F3d 111, clarified the analytical framework for determining whether a remark supports an inference that the employer intentionally discriminated. First, a court should determine whether the remark is stray. The purpose of describing remarks as stray is to recognize that all comments pertaining to a protected class are not equally probative of discrimination and to explain in generalized terms why the evidence in the particular case is not sufficient. The initial categorization of a remark as being stray does not mean that the remark should merely be disregarded. Second, regardless of whether the remark is deemed stray, the remark is to be examined within the context of the "totality of the circumstances."

Categorizing A Remark


The Second Circuit applies the following factors to determine whether a comment is a probative statement that evidences an intent to discriminate or whether it is a non-probative stray remark: (1) the position of the person 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 challenged employment decision; (3) the content of the remark, i.e., whether a reasonable juror could view the remark as discriminatory; and (4) the context in which the remark was made, i.e., whether it was related to the decision-making process. See Minton v. Lenox Hill Hosp., 160 FSupp2d 687, 694 (S.D.N.Y. 2001); Rizzo v. Amerada Hess Corp., No. 99-1068, 2000 U.S. Dist. LEXIS 18754, at *5 (N.D.N.Y. Dec. 28, 2000); Ruane v. Continental Cas. Co., No. 96-7153, 1998 U.S. Dist. LEXIS 8141, at *8 (S.D.N.Y. June 3, 1998). These factors are widely accepted, having been applied by district courts outside the Second Circuit. See e.g., Mosberger v. CPG Nutrients, No. 01-100, 2002 U.S. Dist. LEXIS 22254, at *7 (W.D. Pa. Sept. 6, 2002).

An employer's discriminatory remark will rise above the level of a stray remark when the statement is: (1) made by the decisionmaker or one whose recommendation is sought by the decisionmaker; (2) related to the specific employment decision challenged; and (3) made close in time to the decision. Rizzo, 2000 U.S. Dist. LEXIS 18754. In Chetal v. BLS Funding Corp., No. 05-3014, 2007 U.S. Dist LEXIS 52058 (E.D.N.Y. July 18, 2007), the district court in the Eastern District of New York found that remarks in which a supervisor frequently called an employee various ethnic names were not merely stray remarks and, instead, served as direct evidence of discriminatory motivation supporting the employee's race discrimination claim.

Discriminatory comments that are classified as stray remarks generally fall within one of three categories—those made by: (1) a non-decisionmaker; (2) a decisionmaker but is unrelated to the decision process; and (3) a decisionmaker but temporally remote from the adverse employment decision.

Non-Decisionmaker


In Seltzer v. Dresdner Kelinwort Wasserstein, Inc., 356 FSupp2d 288 (S.D.N.Y. 2005), the district court considered a non-decisionmaker's remark. Honey Seltzer alleged she was terminated because of age discrimination. Ms. Seltzer asserted that in spring 2001, her then-supervisor showed her a bracelet which was a gift for his wife and commented to plaintiff that "if you were 20 years younger and blond and beautiful, you'd get [a bracelet]." Ms. Seltzer ceased working for this supervisor in June 2001, and her employment was terminated in September 2002 when she was 72. The district court found that the remoteness of the remark, the fact that it was made by a former rather than a current supervisor, and the words themselves, supported the conclusion that the remark did not evidence that her termination was motivated by age discrimination.

Likewise, in Posner v. Sprint/United Mgmt. Co., 478 FSupp2d 550 (S.D.N.Y. 2007), the district court considered the relevance of a non-decisionmaker's comment which was temporally remote from the adverse employment decision. After nearly 20 years of employment, David Posner alleged that his employment was terminated in May 2004 at age 60 because of age discrimination. Sprint asserted that his employment was terminated because in April 2004 an anonymous source alerted Sprint that Mr. Posner had opened toll-free lines for himself and his family under a customer's account. When confronted, Mr. Posner signed a statement admitting to this allegation.

In support of his age discrimination claim, Mr. Posner asserted that in 1997 another employee told him that a vice president made a remark about him at a meeting which Mr. Posner did not attend. The vice president reportedly said that Mr. Posner did not represent the future of Sprint. Mr. Posner presented no evidence that this vice president was involved in the decision to terminate his employment.

The district court found that the "remoteness of the remark, the fact that it was made by a non-supervisor, and the words themselves all support the conclusion that this remark does not evidence age discrimination." Id. at 559. The district court also noted that even if this remark demonstrated any ageist disposition, "it is a classic stray remark uttered seven years before the termination." Id.

Decisionmaker


In Lawrence v. Thomson Learning, Inc., No. 05-329, 2007 U.S. Dist. LEXIS 39988 (N.D.N.Y. June 1, 2007), the district court considered a decisionmaker's comment which was unrelated to the decision process. Zina Lawrence alleged that she was passed over for a promotion, disciplined and then discharged in June 2003 because of her race. Three months before the discharge, Ms. Lawrence's supervisor allegedly remarked that she did not verbally confront Ms. Lawrence about her performance issues because Ms. Lawrence was a "scary person." Ms. Lawrence asserted that this remark evidenced racial discrimination.

The supervisor asserted that she was afraid to meet with all employees, including Ms. Lawrence, outside the presence of human resources personnel. The district court found that the alleged "scary person" remark did not have a sufficient nexus to Ms. Lawrence's termination, especially considering that both Ms. Lawrence and the supervisor agreed that their working relationship was relatively conciliative and without tension. Thus, no nexus existed between the remark and the adverse employment action.

Totality Of The Evidence


The Second Circuit has emphasized that although evidence of one stray remark by itself is usually not sufficient proof to show discrimination, a stray comment may "bear a more ominous significance" when considered within the totality of the evidence. Carlton v. Mystic Transp., Inc., 202 F3d 129, 136 (2d Cir. 2000); see also Schreiber, 324 FSupp2d at 522-23.

In Tomassi, 478 F3d 111, plaintiff, Patricia Tomassi, alleged she was terminated at age 63 in violation of federal and state age discrimination laws. Defendant asserted that she was terminated because of her poor performance, her violation of a policy on communicating with the media, and the supervisor hired someone with Web site experience to take over her position. Her direct supervisor made frequent references to Ms. Tomassi's age such as beginning sentences with "in your day and age" and suggested that Ms. Tomassi related well to and "could understand the mentality of" the senior residents.

After a year and a half of employment, the company and Ms. Tomassi's supervisor sought to attract a new, younger clientele, and the supervisor made a point of hiring "younger, energetic, attractive" employees. When she was fired, Ms. Tomassi asserted that the supervisor stated that Ms. Tomassi "probably didn't want to work long hours any more," "you get along with seniors," and praised Ms. Tomassi for her "great skills."

The district court attributed no significance to the supervisors' numerous comments about Ms. Tomassi's age. The district court merely classified the remarks as stray and ceased any further analysis regarding the totality of the circumstances. In contrast, the Second Circuit considered the remarks in the context of all the evidence and found that the comments were legally sufficient to sustain a reasonable inference that the supervisor could have been motivated by age discrimination when terminating Ms. Tomassi. Thus, a stray remark must be evaluated within the totality of the circumstances to determine whether it supports an inference of intentional discrimination.

In an evaluation of the totality of the circumstances, the frequency of the remarks is a factor. In Quimby v. WestLB AG, No. 04-7406, 2007 U.S. Dist. LEXIS 28657 (S.D.N.Y. April 19, 2007), plaintiff, Claudia Quimby, alleged that her employment was terminated and that she was denied bonuses because of gender discrimination and in retaliation for filing a complaint with the Equal Employment Opportunity Commission. Defendant alleged that her employment was terminated for poor performance. In support of her prima facie case, Ms. Quimby submitted evidence of numerous remarks made by her supervisor who was also the person responsible for her termination. Such alleged remarks included: "women are a problem, they are high maintenance in the context of work," there is a "girlie way" of doing work which differs from the "right way," using words such as "bitch" at the workplace, and characterizing a wine as "silky...much like, I imagine, a 16 year old French teenager."

The district court stated that although it is unclear whether these remarks were made temporally close to when Ms. Quimby's employment was terminated, "that consideration is less significant where, as here, there is evidence that the supervisor repeatedly used such language" and because each alleged remark employs language that is gender-specific. Id. at *19. The district court found a nexus between the allegedly discriminatory remarks and defendant's decision to discharge Ms. Quimby.

In evaluating the totality of the circumstances, courts go beyond plain words to determine whether, in the context used, they evidence discriminatory animus, as opposed to simply the speaker's recognition of an employee's circumstances, even if relevant to a protected status. For example, New York-based courts have repeatedly made clear that the Age Discrimination in Employment Act "does not make all discussion of age taboo." Raskin v. Wyatt Co., 125 F3d 55, 63 (2d Cir. 1997). In circumstances where an employer gives a longstanding and older employee the opportunity to "retire," instead of being terminated, the same "tends to show a desire to provide [] an opportunity to avoid the stigma associated with having been fired," rather than evidencing discriminatory animus. Young v. General Foods Corp., 840 F2d 825, 831 (11th Cir. 1988), cert. denied, 488 U.S. 1004 (1989).

Of particular relevance in the totality of the circumstances analysis is the timing of the termination decision. Where the termination decision was made prior to an alternative choice of retirement being discussed with the affected employee, said remarks are not evidence of discriminatory animus based on age. Id. In short, where the surrounding circumstances evidence that termination is a foregone conclusion in light of economic circumstances, remarks about the possibility of retirement as an option is not considered discriminatory. Roundtree v. School Dist. of Niagara Falls, 741 NYS2d 633 (4th Dept. 2002).

Conclusion

A conclusion that a remark "looks and sounds discriminatory" or "looks and sounds neutral" is only the first step to determining whether it may be admissible, relevant evidence demonstrating discriminatory intent. Analysis regarding the totality of the circumstances is then necessary. Therefore, before implementing a termination decision, employers are cautioned to look at all circumstances surrounding that decision, including who is responsible for making the termination decision, who is providing input for that decision, the business reason for the decision, and any discriminatory comments or stray remarks that may have been made by any person involved in the termination process. These circumstances should be carefully scrutinized with counsel before a termination decision is implemented to ensure that the decision-making process is free from discriminatory animus.

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

Duane Morris LLP, one of the 100 largest law firms in the world, is a full-service firm of more than 650 lawyers. In addition to legal services, Duane Morris has independent affiliates employing approximately 100 professionals engaged in other disciplines. With offices in major markets in the United States and internationally, Duane Morris represents clients across the U.S. and around the world.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions