Food for Thought: The Stray Remarks Doctrine
Until this summer, Paula Deen, the former Food Network celebrity chef, was best known for her love of butter and deep-fried Southern cooking. Not anymore. In deposition testimony—testimony that went viral on the Internet from a racial and sexual discrimination lawsuit by a former employee—Deen admitted that years earlier, she had used the "n-word" and said she wanted to give her brother a true "southern style plantation wedding," with Civil War-era serving by "middle-aged black men" wearing "white jackets with a black bow tie." In the wake of this testimony, the Food Network, and sponsors such as Wal-Mart, Target, QVC and Random House, suspended or severed ties with Deen.
Although the court later dismissed the racial discrimination claims against Deen and others on standing grounds, and the matter subsequently settled privately, this highly publicized controversy highlights the impact workplace comments can have in fueling allegations of employment discrimination. Had the lawsuit continued, Deen's comments likely would have been analyzed by the court under what has come to be known as the "stray remarks" doctrine, which reviews factors such as the extent to which the remarks at issue were made by the individuals who made the employment decision or were related to the decision-making process itself.
This article surveys recent New York federal district court decisions to illustrate factors that courts consider in applying the stray remarks doctrine and determining whether comments such as Deen's will be viewed merely as stray remarks or as evidence of discriminatory motive or animus.
Development of the Doctrine
Under the stray remarks doctrine, a concept first developed by Justice Sandra Day O'Connor, comments that were unrelated to the employment decision at issue or that were made by non-decision-makers are not to be considered in deciding whether a plaintiff has met his or her burden of showing discrimination at summary judgment or trial. See Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring) ("statements by nondecisionmakers, or statements made by decisionmakers unrelated to the decisional process itself" are insufficient to establish discriminatory intent).
New York federal courts have adopted the stray remarks doctrine and developed standards for applying it in employment discrimination lawsuits. In Tomassi v. Insignia Financial, 478 F.3d 111 (2d Cir. 2007), the U.S. Court of Appeals for the Second Circuit noted that the "purpose of [describing remarks as stray is] to recognize that all comments pertaining to a protected class are not equally probative of discrimination." The court focused on the relation of the remark at issue to the allegedly discriminatory behavior and on who made the remark, holding that "[t]he 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."
More recently, in Henry v. Wyeth Pharmaceuticals, 616 F.3d 134 (2d Cir. 2010), the Second Circuit elaborated on Tomassi, articulating the following four-part test for determining whether a remark is probative of discriminatory animus:
1) Who made the remark (i.e., a decision-maker, 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 (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).
616 F.3d at 149.