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									          CALIFORNIA SUPREME COURT DECISION
      SUPPORTS EMPLOYEE AGE DISCRIMINATION CLAIMS
As the number of 40+ year olds in the workforce continues to grow with baby boomers
delaying retirement due to the economic climate, California employers invariably will see
a rise in age discrimination claims. Age, specifically 40 and older, is a protected category
under both state and federal law. The California Fair Employment and Housing Act
prohibits an employer from discriminating on the basis of age. In order for an employee
to succeed with an age claim, he must first show that he was 40+ years old, was qualified
for the position at issue, and that he suffered an adverse employment action. If the
employee is able to establish this “prima facie case,” the burden shifts to the employer to
show that it had a legitimate, nondiscriminatory reason for its decision. If the employer
satisfies its burden, the employee has a final opportunity to show that the employer’s
stated reason is a pretext for discrimination.

In defending against discrimination cases, employers sometimes file motions for
summary judgment asking courts to dismiss claims before they ever go to juries where
outcomes are difficult to predict.

In Reid v. Google (2010) 50 Cal. 4th 512, the California Supreme Court deviated from a
United States Supreme Court decision and federal precedent which provide employers
the ability to obtain dismissals of age claims based on the “stray remarks” doctrine. This
federal doctrine addresses age derogatory comments by an employee’s: (1) coworkers;
and (2) supervisors, but only as to those statements made outside of the decisional
process. Such statements are deemed isolated, not relevant, and insufficient to avoid
dismissal of a case. Focus instead is on a supervisor’s comments made within the
decision-making process. In Price Waterhouse v. Hopkins (1989) 490 U.S. 228, United
States Supreme Court Justice Sandra Day O’Conner stated that stray remarks “standing
alone” are not sufficient to prove an employee’s prima facie case of age discrimination.

In this case, fifty-two year old Brian Reid was hired as the Director of Operations and
Engineering for Google. One of Reid’s coworkers referred to Reid as “slow,” “fuzzy,”
“sluggish,” “lethargic,” that he “lack[ed] energy”, and that his ideas were “obsolete” and
“too old to matter.” Reid’s supervisor once made a statement to Reid that he was not a
“cultural fit” with Google. Other coworkers referred to Reid as an “old man” and “old
fuddy-duddy.”
Google terminated Reid, and Reid sued Google for various causes of action, including
age discrimination. Google brought a motion for summary judgment to dismiss Reid’s
claims. The trial court agreed with Google and dismissed Reid’s age discrimination
claim. The case was appealed to the California Court of Appeal, which reversed the
dismissal. This reversal was then appealed to the California Supreme Court.

Google asserted that the Supreme Court should adopt the judicially created “stray
remarks” doctrine so that before going to trial, California courts may dismiss
unmeritorious cases principally supported by such remarks. In opposition, Reid argued
that California courts should not view these remarks in isolation, but they should be
considered with all of the evidence in the record.

The Court noted that age-based remarks not made directly in the context of an
employment decision or made by a non-decision maker may be relevant, circumstantial
evidence of discrimination. The Court stated that:

              Although stray remarks may not have strong probative
              value when viewed in isolation, they may corroborate
              direct evidence of discrimination or gain significance in
              conjunction with other circumstantial evidence. Certainly,
              who made the comments, when they were made in relation
              to the adverse employment decision, and in what context
              they were made are all factors that should be considered.
              Thus, a trial court must review and base its summary
              judgment determination on the totality of the evidence in
              the record, including any relevant discriminatory remarks.

The Court noted that a “slur”, in and of itself, does not prove actionable discrimination,
but when combined with other evidence, an otherwise isolated remark may create
sufficient evidence to defeat an employer’s motion to dismiss. The Court also
highlighted that the “stray remarks” doctrine contains a major flaw in that discriminatory
remarks by non-decision-making employees can influence a decision maker. The
California Supreme Court affirmed the Court of Appeal’s decision thereby resurrecting
Reid’s age claim.

What does this case mean for California employers? When it comes to motions to
dismiss age discrimination claims, it is likely going to be more difficult to succeed.
Employees will argue that this case means virtually any and all evidence that could be
deemed age discriminatory/derogatory should be considered by a judge in deciding
whether to dismiss a case. Even though age comments are made by coworkers and/or
supervisors that are not tied directly to the adverse employment decision at issue, they
may be used to bolster an employee’s case. This case also emphasizes the need for
updated anti-discrimination policies and training and educating all employees, both
supervisors and non-supervisors, on issues of discrimination in an effort to prevent such
lawsuits from being filed in the first place.
This article was written by Shelline Bennett, an attorney with the labor and employment
law firm of Liebert Cassidy Whitmore (LCW). Ms. Bennett is a Partner in the Fresno
office and can be reached at (559) 256-7800 or sbennett@lcwlegal.com. For more
information regarding the discussion above or on our firm please visit our website at
www.lcwlegal.com, or contact one of our offices below.

Liebert Cassidy Whitmore publishes this article as a service to our clients and other friends for
informational purposes only. It is not intended to be used as a substitute for specific legal advice
or opinions and the transmission of this information is not intended to create an attorney-client
relationship between sender and receiver. You should not act upon this information without
seeking professional counsel.

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