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Age Discrimination: Stray Remarks

Posted by Frank Steinberg | Mar 12, 2007 | 0 Comments

A common issue in employment discrimination litigation is the importance that should attach to comments made by representatives of the employer as evidence of discriminatory intent. Employers often argue that comments that might otherwise be seen as discriminatory should be disregarded as "stray remarks." Courts have struggled to find a coherent definition of stray remarks that fairly balances an employer's interest in being held liable only where it is proven to have a discriminatory intent against an ex-employee's interest in being allowed to prove discriminatory intent through the words of the employer's agents.

The Court of Appeals for the Second Circuit recently addressed the stray remarks issue in a helpful way.  The case is Tomassi v. Insignia Financial Group, Inc.  When Patricia Tomassi was 60 she was hired as Supervisor of Resident Services for a large apartment complex.  Soon thereafter, her supervisor, Mr. Stadmeyer, began to refer to her age.

Stadmeyer would begin sentences with “In your day and age. . . and suggest that Tomassi related well to and "could understand the mentality" of PCV/ST's senior residents.  Stadmeyer also repeatedly asked Tomassi whether she would be better off retiring so she could "take time off to rest."  According to Tomassi's deposition testimony,  "[H]e would ask me if I ever thought about retiring. He would ask me if I thought I could keep up with some of the work. He asked me if I was tired of working. . . [W]asn't it time to retire, did I ever think about retiring. Tired of the commute."  Tomassi asserted that Stadmayer made such age-related comments to her “once a month, [or] once every couple [of] months."

Over the next couple of years Tomassi received raises and a promotion.  Her performance evaluations were good, although there was a criticism of the quantity of work that she produced.  Insignia, however, wanted a younger workforce for business reasons.

Tomassi was fired at age 63 and was replaced by a 25 year old.  Stadmeyer falsely told her that he had hired someone with website experience to take over her responsibilities.  He later testified that she was not doing her job effectively and efficiently.  More, Stadmeyer  told Tomassi that he terminated her because she didn't want to work long hours any more and would be better off with a part-time job, perhaps working with seniors.

The trial court entered summary judgment in favor of the defendants on Tomassi's age discrimination.  It held that Stadmeyer's statements were stray remarks that were insufficient to support the age discrimination claim.

The court of appeals reversed and sent the case back for a trial.  For example, Stadmeyer's assertion to the effect that Tomassi was well suited to work with seniors was not offensive. Nonetheless, it had a strong tendency in the circumstances to show that Stadmeyer believed that, because of Tomassi's age, she was not well suited to deal with the younger tenants Stadmeyer was hoping to attract.

The relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decision-maker was motivated by assumptions or attitudes relating to the protected class. Inoffensive remarks may strongly suggest that discrimination motivated a particular employment action.

Because a jury could reasonably construe Stadmeyer's remarks to be evidence of age discrimination, the Second Circuit held that a trial was required.

Managers and HR professionals should not be lulled into a false sense of security by the stray remarks doctrine.  While the doctrine itself remains in effect, the Tomassi case makes clear that it will be applied by the courts on the facts of the particular case.  In short, there is no bright-line rule that managers can use to determine when their comments will be considered to be stray, and therefore harmless, and when they will be considered as evidence of discrimination.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...

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