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Employment Law Alert – CA Supreme Court Weakens Chances for Early Dismissal of Discrimination

July 29, 2011 |
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In August 2010, the California Supreme Court decided Reid v. Google (2010) 50 Cal.4th512.  This case changes the types of evidence which courts may consider and thus has a significant impact on the way employers approach litigation of discrimination claims.

Reid was hired by Google at age 52 to be a director of operations and a director of engineering.  Reid alleged that the vice-president of engineering operations and other employees made derogatory age-related remarks to Reid during his employment.  He was told that his opinions were “obsolete,” “too old to matter,” that he was “slow,” “fuzzy,” “sluggish,” and “lethargic,” that he “did not display a sense of urgency” and “lacked energy.”  Other co-workers called Reid an “old fuddy-duddy,” “old guy,” told him his knowledge was ancient, and told him his compact disc jewel case office placard should be an “LP” instead of a “CD.”  A month before Reid was removed from the director of operations position, one of Google’s co-founders sent an e-mail saying “We should avoid the tendency towards bloat particularly with highly paid individuals.”  When Reid was removed, two men took over his duties – one fifteen years and the other twenty years his junior.  He was assigned the task of creating an in-house graduate degree program, but was not given a budget or staff to support it.  He was encouraged to look for jobs in other departments but no one intended to hire him, and one department head commented that Reid was not a “cultural fit” at Google.  When Google eliminated the in-house graduate degree program, Reid was terminated.

Reid sued the company five months later, claiming age discrimination.  Reid claimed that the reasons that Google gave for his termination were merely a pretext, and that Google’s real motivation was discriminatory intent.

Prior to this case, some courts would exclude evidence of the co-workers’ comments, on the theory that “stray remarks,” or comments made by a person who was not the decision-maker, outside the decision-making process, or which had no effect on the decision-making process, would not be considered as evidence in deciding whether there was a viable claim for discrimination.  Here, the trial court would not consider such remarks as evidence, but the Court of Appeal disagreed and said such remarks should be considered.

The California Supreme Court agreed with the Court of Appeal.  The Supreme Court stated that “an age-based remark not made directly in the context of an employment decision, or uttered by a non-decision maker, may be relevant, circumstantial evidence of discrimination.”  Id. at 539.  While a stray remark may not by itself create a triable issue of age discrimination, it may carry weight when considered in the context of other evidence.

Now, in evaluating whether a claim for discrimination may be dismissed as a matter of law, courts must consider circumstantial evidence such as statements that were made to or about the plaintiff by someone who did not make the decision about the adverse employment action, or by the decision maker in a context unrelated to the adverse employment action.  In short, Reid v. Google greatly lessens the chances of an employer’s success on a motion for summary judgment in a discrimination claim, and increases the likelihood that a jury will be allowed to decide whether or not discrimination occurred.

If you have any questions regarding this development or how it affects your business, please contact Kara Arguello or any member of Berliner Cohen’s Employment Law Group.

Roberta S. Hayashi

Christine Long

Kara L. Arguello



©2011 Berliner Cohen.  This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship and no attorney-client relationship is created through your use of the Berliner Site or your receipt of the materials.

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