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.
In Henry, the plaintiff, in connection with racial discrimination claims against his former employer, alleged that the employer’s manager had made several racist remarks, including a reference to a broken alarm system as a “tar baby that I just can’t get off my back,” and that plaintiff’s immediate supervisor had stated that an African-American employee performed “voodoo” and asked a Hispanic employee whether he “was the kind of guy to wear his pants hanging down….” The district court granted the employer’s motion in limine to exclude the remarks at trial.
On appeal, the Second Circuit, after examining each of the remarks using the four-part test, affirmed. The court found that none of the comments was “related to the decision-making process.” As to the “tar baby” remark, the court held that “while a reasonable juror might have found the remark offensive, it is less clear that a reasonable juror would have found it indicative of discriminatory animus.” As to the remarks regarding “voodoo” and “pants hanging down,” the court concluded that, although they were said outside the decision-making context and one occurred years before the challenged employment action, they “could have had probative value,” as they were made by the decision-maker and a reasonable juror could construe them as discriminatory. Nevertheless, the court found, based on the circumstances, that their exclusion was permissible, or harmless error at worst given the overwhelming evidence that the actions of the immediate supervisor in question were not motivated by discriminatory animus.
Several post-Henry cases from the Southern and Eastern Districts of New York illustrate how those courts have applied the stray remarks doctrine and the Henry factors in recent years.
Who made the remark?
As noted, under Henry, courts look at whether the alleged remarks were made by an individual who made the employment decision in question or was involved in the decision-making process: “the more remote and oblique the remarks are in relation to the employer’s adverse action, the less they prove that the action was motivated by discrimination…the closer the remark’s relation to the allegedly discriminatory behavior, the more probative that remark will be.” Henry, 616 F.3d at 149 (quoting Tomassi, 478 F.3d 111) (internal quotation marks omitted).
In Britt v. Merrill Lynch, 2011 U.S. Dist. LEXIS 96881 (S.D.N.Y. Aug. 26, 2011), the plaintiff alleged that she was wrongly denied the assignment of accounts because of her sex, citing a coworker’s remark that she was “denied the account because they wanted ‘a young guy that gets in early and knows the research.’” However, because the remark was made by someone who was neither the plaintiff’s supervisor nor had any decision-making authority with regard to the assignment of accounts, the court found the comment to be a stray remark insufficient to establish gender-based animus and granted summary judgment for the employer.
When was the remark made relative to the alleged adverse employment action?
Courts also look at the duration between the remark and the challenged employment action. In Benson v. Otis Elevator, 2012 U.S. Dist. LEXIS 131535 (S.D.N.Y. Sept. 13, 2012), an African-American plaintiff, relying on two comments with allegedly racial undertones made by coworkers at a conference one year prior to her termination, alleged that she was terminated based on her race. According to the plaintiff, when she said to a coworker, “It looks like you got some sun,” the coworker responded, “Yeah, that’s something you don’t need to do.” Another coworker stated, “Hey, it’s the dreamgirls,” as the plaintiff and two other African-American women walked by. The court found that the remarks were stray remarks insufficient to support a prima facie case of discrimination, because the connection between the comments and the termination decision was “tenuous at best,” given the lapse in time and the fact that the comments were not made by a decision-maker.
Courts have found durations even shorter than one year to be sufficiently remote temporally so as to render a comment a stray remark. In Buckman v. Calyon Secs. (USA), 817 F.Supp.2d 322 (S.D.N.Y. 2011), an African-American plaintiff alleged that he was unlawfully terminated based on his race and national origin, citing a comment by a supervisor (but not the person who made the termination decision) five months before the plaintiff’s termination that another colleague was well suited for sales because “he’s white.” Although the court deemed the comment “inappropriate,” it held that it was “too remote in time and context to support a reasonable inference that [the plaintiff's] discharge was a result of race discrimination.”
What was the nature of the remark?
In this prong of the stray remarks test, the courts ask whether a reasonable juror could view the remark as discriminatory. In Pibouin v. Computer Associates International, 867 F.Supp.2d 315 (E.D.N.Y. 2012), the court examined a superior’s remark, “speak up, I cannot understand you,” to a French employee speaking English, and found it did not implicate national origin so much as the volume of the employee’s voice and his enunciation.
The court reasoned that the supervisor’s comment “d[id] not, in and of itself, reflect discriminatory animus flowing from plaintiff’s failure to be understood.” And while the supervisor in Pibouin also stated that he “hates people with strong accents,” the court considered the example of a “native-born American with a strong regional accent” in concluding that the supervisor’s statement did not “automatically implicate one’s national origin or identity.”
Was the remark made in the context of the decision-making process?
Lastly, courts examine the context in which the remarks are made to clarify “whether [the comment] was related to the decision-making process.” Henry, 616 F.3d at 149. In Cai v. Wyeth Pharmaceuticals, 2012 U.S. Dist. LEXIS 38484 (S.D.N.Y. March 19, 2012), the plaintiff alleged that he was wrongfully terminated because of his age, citing a director’s repeated refrain: “it’s not easy for you [the plaintiff] at your age to learn anything new.” Considering the remark’s context, the court noted that the director, who was not a decision-maker, had been helping the plaintiff with an internal job search and was advising him that because he was the only IT person in a department of chemists, it might be easier to switch departments rather than become a chemist. The court thus found that there was nothing to support an inference that the remark evinced age-based animus and also found that, because the director played no part in the decision-making process, his comments were irrelevant.
In Zito v. Fried, Frank, Harris, Shriver & Jacobson, 869 F.Supp.2d 378 (S.D.N.Y. 2012), the plaintiff, a recovering alcoholic, alleged, among other things, disability discrimination based on two comments made by subordinates: One coworker stated that the plaintiff was “drunk on power,” and the other coworker stated that she “[felt] like [she was] at an AA meeting.” The court noted, however, that in addition to the fact that the remarks were made by subordinates who were not decision-makers and who were not connected to the decision to terminate the plaintiff’s employment, the context of the remarks supported summary judgment dismissal. Specifically, the court held that the “drunk on power” comment made in the context of a subordinate’s complaint to human resources concerning the plaintiff’s abuse of authority and overbearing style had nothing to do with her protected disability, and that the “AA meeting” comment made in response to a request to provide a self-appraisal in a performance review meeting had no relation to the plaintiff’s alcoholism.
Now that the racial discrimination claims against Deen have been dismissed and the lawsuit has settled, we will not know whether her comments would have been deemed stray remarks or evidence of discriminatory intent—although the circumstances suggest that the remarks may well have been insufficient to support the former employee’s discrimination claims. We will have to stay tuned to see if Deen can “reheat” her image like so many television celebrities before her.
Brian S. Kaplan is a partner and Elisheva M. Hirshman is an associate in Kasowitz Benson Torres & Friedman’s employment practices and litigation group in New York. Katherine Ensler, a summer law clerk at the firm, assisted in the preparation of this article.