3: not serving any useful purpose : unwanted 8

The mere fact that a discriminatory comment is contextually or temporally removed from an adverse employment action should not serve automatically to divest that comment of all or most of its evidentiary value. Further, the fact that a remark is isolated or sporadic, rather than part of a pattern of comments, may mean that it belies, rather than disproves an undisclosed mindset of bias.

To be sure, various facets of how, by whom, and when a comment is made might tend to attenuate evidence. While some evidence, upon a full and proper examination of all the surrounding circumstances, might be insufficient, irrelevant, or unpersuasive as a matter of law, judges too often substitute their personal assessments of evidence for the assessments of reasonable jurors. This behavior leads to the premature foreclosure of plaintiffs' employment discrimination cases and to the granting of judgments as a matter of law for defendants after some plaintiffs have procured jury verdicts in their favor. Courts also arrive at "stray" determinations in a wide variety of circumstances and often do so without much analysis.

The so-called "stray comments" or "stray remarks" doctrine finds its origins in a United States Supreme Court concurrence penned by Justice Sandra Day O'Connor. (9) However, promulgated and proliferated by lower courts at a great rate, the "doctrine" may have been mistaken, misplaced, and misapplied from the outset. Likely, the "doctrine," taken out of its context by these courts, was not intended to be set forth as such by Justice O'Connor. Justice O'Connor looked to be making a very specific delineation in her concurrence, not aiming to cordon off whole categories of potentially probative evidence as worthless in the context of adjudicating a motion for summary judgment. (10) The doctrine's proliferation at a near exponential rate, however, is undeniable. By way of illustration, a Westlaw search for the term "Title VII" and the word "stray" within three words of the words "comment," "comments," "remark," or "remarks" yields no results for cases decided prior to 1989--the year that the United States Supreme Court issued Price Waterhouse v. Hopkins--in Westlaw's "allfeds" database. For the year 1989, however, six hits come up, and for the years from then until 2010, the hits increase as shown below:

Year   No. of Hits   Year   No. of Hits

1989   6             2000   126
1990   12            2001   115
1991   10            2002   117
1992   22            2003   102
1993   29            2004   113
1994   48            2005   146
1995   65            2006   180
1996   80            2007   207
1997   105           2008   181
1998   113           2009   186
1999   114           2010   204

This Article traces the genesis of this misguided doctrine, its proliferation, and its many flaws. (11) It explains what the doctrine has come to mean and which facets of a comment can render it "stray" as a matter of law. Part II evaluates this unwieldy and untenable doctrine and its haphazard and misguided application over the past two decades. Specifically, it was never intended to be a formal doctrine. As employed by courts, the term "stray" means too many things and is too ambiguous for the doctrine to be coherent or effective. Moreover, courts ascribe varying degrees of significance to the designation "stray," with some courts using it to deem evidence to be circumstantial rather than direct (and thus invariably insufficient), and other courts using it to deem potentially viable evidence worthless as a matter of law.

This Article argues that the stray comments "doctrine" does more harm than good and that those courts wishing to grant a defendant summary judgment on a claim should have to do so by looking at the totality of the circumstances, rather than summarily using a single facet of a comment to dismiss it from consideration. It points out that the doctrine and its premises fail to comport with even a basic understanding of social science and how people foment, act upon, and reveal discriminatory bias. Interestingly, another judge-made doctrine built into employment discrimination law--the same actor inference--stands in stark asymmetry with the stray comments doctrine. The former presumes that attitudes evinced inhere within people for years at a time while the latter declares that no plausible nexus exists between expressed animus or other type of bias and an action taken mere days or weeks later.

This Article draws attention to a phenomenon that, used unsparingly over two decades ago, has grown unfettered into a grave problem for employment discrimination plaintiffs. It calls for a much-needed return to an adjudication of employment discrimination cases that comports with the summary judgment standard and factors in all potentially relevant evidence, construing all facts in the light most favorable to the non-movant, who usually is the plaintiff.

II. Background: the Stray Comment Doctrine

Although the so-called stray comments or stray remarks doctrine maps out onto a case at several potential junctures--for example, when a court decides a motion in limine asking that evidence be excluded from a trial or when it decides a post-trial motion (12)--this Article focuses on the doctrine as it operates at the summary judgment stage, usually to foreclose a plaintiff's case.

A. Title VII and Frameworks

Federal antidiscrimination law was passed in this country against the backdrop of a compelling need for certain historically discriminated-against groups to be afforded access, entree, and inclusion into public life, including employment. The two primary statutes whose jurisprudence this Article ex amines are Title VII of the Civil Rights Act of 1964 (13) and the Age Discrimination in Employment Act of 1967 (ADEA). (14) Title VII makes it:

   [A]n unlawful employment practice for an employer ... to fail or
   refuse to hire or to discharge any individual, or otherwise to
   discriminate against any individual with respect to his
   compensation, terms, conditions, or privileges of employment,
   because of such individual's race, color, religion, sex, or
   national origin.... (15)

If a plaintiff brings a disparate treatment claim under Title VII, she may proceed by demonstrating either that discrimination was the sole motivating factor behind an employment decision, or, pursuant to the 1991 amendments to the Act, that it was a "motivating factor." (16) In the latter case, however, the plaintiffs remedies may be limited. (17)

McDonnell Douglas Corp. v. Green laid out the burden-shifting framework for discrimination claims under Title VII. (18) Under this framework, a plaintiff seeking to establish that she has been discriminated against with respect to the terms or conditions of her employment based on her protected class status must first make out a prima facie case, which will create an initial inference that she experienced unlawful discrimination. (19) The precise form that a prima facie case will take will vary with the case, but most prima facie cases essentially allege: (1) that the plaintiff is a member of a protected class; (2) that she was qualified for and (where applicable) applied for the position or promotion at issue; (3) that she suffered an adverse action, such as a termination, non-selection, or demotion; and (4) that this adverse action occurred under circumstances giving rise to a legitimate inference of protected class-based discrimination. (20) Such circumstances may include the position going to a non-class member. (21) This prima facie case sets up a rebuttable presumption in favor of the plaintiff's claim. (22) At that point, the burden shifts to the defendant-employer to articulate a legitimate, nondiscriminatory reason for the adverse action. (23) Finally, the burden shifts back to the plaintiff, who carries the ultimate burden of persuasion, to show that the reason proffered by the defendant is a mere pretext for discrimination. (24)

In 1989, the Supreme Court held that an employee may show that an employment decision was made based on both legitimate and illegitimate reasons; (25) Congress codified this "mixed-motive" theory in the Civil Rights Act of 1991.26 In the absence of clear Supreme Court guidance as to the precise definition of "direct evidence," and despite the term's frequent use by litigants and courts in employment discrimination cases, some courts have held that McDonnell Douglas is the proper framework to use only when adjudicating cases that lack "direct evidence" of discriminatory intent. (27) Courts evaluating comments alleged to be indicative of class-based disparate treatment have continued to carve out separate paths to a plaintiffs proving her case, distinguishing between direct and indirect evidence. (28) Without an official definition of direct evidence by the Supreme Court, however, courts have noted that "[t]he Supreme Court has defined direct evidence in the negative by stating that it excludes 'stray remarks in the workplace,' 'statements by nondecisionmakers,' and 'statements by decisionmakers unrelated to the decisional process itself.'" (29)

In the 2003 Supreme Court case of Desert Palace, Inc. v. Costa3 (30) the Court held that in order to establish a jury question as to a section 2000e-2(m) "mixed motive" violation, "a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that 'race, color, religion, sex, or national origin was a motivating factor for any employment practice.'" (31) The Court thus eliminated the distinction between circumstantial and direct evidence, finding the latter unnecessary to procure a so-called "mixed motive" jury instruction. (32) After Desert Palace, however, lower courts persisted in their confusion over the type and strength of evidence needed in a Title VII claim. (33)

With a lack of guidance from the Supreme Court has come widespread disagreement and confusion among courts as to how to adjudicate intentional discrimination claims. (34) Most courts, however, have reached a consensus that post-Desert Palace, a plaintiff trying to establish intentional discrimination may proceed "either (1) directly by persuading the court that a discriminatory reason more likely motivated the employer or (2) indirectly by showing that the employer's proffered explanation is unworthy of credence," and with respect to the "direct method," the plaintiff "may present either direct or circumstantial evidence of discrimination, so long as it is sufficient to satisfy his ultimate burden." (35) Courts have varied in their interpretations of what constitutes "direct evidence" and what is required to sustain a discrimination case. (36)

One court aptly has referred to the "Desert Palace, Inc. I McDonnell Douglas quagmire that [past decisions] admittedly left wet and boggy" but noted that despite the quagmire, on a motion for summary judgment in an employment discrimination case, a court "need only inquire whether [the plaintiff] presents 'enough evidence to permit a finding that there was differential treatment in an employment action and that the adverse employment decision was caused at least in part by a forbidden type of bias.'" (37)

The ADEA prohibits an employer from discriminating against an employee "because of such individual's age." (38) In 2009, in Gross v. FBL Financial Services, Inc. , (39) the Supreme Court held that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove by a preponderance of the evidence that age was not merely one, but rather the "but-for" cause of the adverse employment action at issue. (40) The Court declined to permit any kind of mixed motive analyses of ADEA cases, observing that:

   Unlike Title VII, the ADEA's text does not provide that a plaintiff
   may establish discrimination by showing that age was simply a
   motivating factor. Moreover, Congress neglected to add such a
   provision to the ADEA when it amended Title VII to add [section]
   [section] 2000e-2(m) and 2000e-5(g)(2)(B), even though it
   contemporaneously amended the ADEA in several ways. (41)

Prior to Gross, some lower courts had been amenable to a construction of the ADEA that permitted so-called mixed motive claims. (42) Numerous courts and scholars have posited that Gross has made it harder for ADEA plaintiffs to prove age discrimination under the statute. (43)

B. The Stray Comment Doctrine: Description and Examples

Courts often will dismiss a remark offered as evidence of discriminatory intent as "stray" before going on to hold, as a matter of law, that no reasonable juror could find for the plaintiff in a case and thus summary judgment is warranted. (44) The "stray remarks" or "stray comments" doctrine, however, is a series of loosely-bound doctrines and casual labels that different courts assign to proffered evidence of discrimination that they plan to discount or ignore. (45) In essence, a comment or remark an employment discrimination plaintiff proffers to help show that she was discriminated against because of her protected class status may, under various iterations of the doctrine, be deemed "stray" and deemed insufficient or otherwise ignored for one or more of the following reasons: (1) the remark(s) were made by one too removed from the decision making process at issue; (46) (2) the remark(s) were isolated, as opposed to part of a broader pattern of comments tending to evince bias; (47) (3) the remark(s) were not made with sufficient temporal proximity to the adverse action at issue in the suit; (48) (4) the remark(s) were too ambiguous to be clearly probative of discriminatory bias; (49) or (5) the remark(s) were too contextually attenuated from the adverse action at issue in the suit to be reflective of discriminatory bias. (50) Moreover, recent jurisprudence appears to be making it easier for judges to call a proffered comment stray. Indeed, the Seventh Circuit recently reiterated that "a particular remark can provide an inference of discrimination when the remark was (1) made by the decision maker, (2) around the time of the decision, and (3) in reference to the adverse employment action." (51)

A look at what courts have meant when they have ascribed one of these reasons to a comment in order to deem it stray reveals some of the flaws in allowing one or more of these reasons to discount evidence as legally incapable of evincing discriminatory intent. (52)

1. The Remark(s) Were Made by One Too Removed from the Decision Making Process at Issue

At first blush, it seems to make sense to say that if a comment did not come from a decision maker, it should not be used to demonstrate the decision maker's discriminatory bias. Numerous courts have held that where an alleged discriminatory comment does not originate with a decision maker, the comment should be given little to no weight based on that fact alone. (53)

However, the surface appeal of this argument wears thin when one considers the influence that another person who is not a decision maker may have upon a decision maker or upon the process. (54) The recently judicially acknowledged "cat's paw" doctrine, under which courts recognize that the discriminatory bias of an individual not formally involved with the adverse action decision can infiltrate or otherwise taint a decision-making process so as to render it biased, demonstrates this consideration. (55) The strength of the judicial recognition of this taint is so strong that it has been recognized where the decision maker did not know the protected class of the employee she was discriminating against, but was found to have violated Title VII nonetheless after she relied on the evaluations of a biased non-decision maker. (56)

Further, even if an employee's voiced bias does not taint a decision maker, it may reflect a workplace environment that is rife with or permeated by discrimination that may affect a decision maker's own bias and/or his tolerance for or even encouragement of others' discriminatory animus. (57) While each case is unique, and while a court may find a non-decision maker's comment, considered in context, to be legally incapable of demonstrating the requisite discriminatory intent, numerous courts have discounted proffered comments and granted summary judgment to defendants relying solely on the fact that decision makers did not make the comments.

For example, in 2000, a district court examined proffered evidence of alleged age discrimination at a workplace, including a drawing from a corporate presentation, depicting:

   a balding man who has one hand to his mouth and furrowed eyebrows,
   as though he is concerned. The caption reads "EMPLOYEE CHOICE." His
   thoughts appear in two bubbles over his head. One is "STAY
   (ASSESSMENT)" and the other is "GO (RATIONALIZATION)." Plaintiffs
   argue[d] that the drawing "depicts a flustered, almost pathetic
   fellow who is more to be laughed at than depended on" and puts into
   visual form the company's stigmatizing stereotypes about middle
   age. (58)

The court found that the plaintiffs had not produced proof that the proffered evidence was germane to the "decisional process itself because "[e]ven if the evidence demonstrated that those voluntary programs were designed to reduce the number of Conrail employees age 40 and over, it certainly does not necessarily follow that the involuntary RIF ... was age discriminatory," and because "[t]he statements of nondecisionmakers are not sufficient to establish a direct evidence case." (59)

In a 2011 district court case, the plaintiff alleged that his coworkers and supervisors made frequent race-based comments about African-Americans: for example, that they were "lazy, worthless, and just here to get paid." (60) The court, however, declined to find "a causal link between racial comments and the adverse employment decision," noting that "[u]nder the McDonnell Douglas analysis, 'stray remarks, statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process are insufficient to establish a prima facie case,'" and that the plaintiff had proffered nothing to refute the notion that the "comments were anything more than stray remarks." (61)

Recently, numerous courts have found that because a proffered comment was not uttered by someone authorized to make the employment decision at issue, the comment was "stray." Thus, the court could not consider it, and no triable issue of fact remained that would preclude a grant of summary judgment. (62) On one hand, evidence that the maker of a biased comment was not a decision maker should operate to strengthen the evidence proffered to show discrimination "because of" protected class status. However, such evidence ought not be disregarded automatically until the trier has ascertained that the speaker did not influence the decision making process in any meaningful way, that the comment does not reflect attitudes that pervade the work place culture so as to have possibly influenced a decision, and that the comment does not reflect values and judgments set forth by decision makers.

2. The Remark(s) Were Isolated, as Opposed to Part of a Broader Pattern of Comments Tending to Evince Bias

A second factor that may lead to a determination that a comment is not ample evidence of a discriminatory mindset, but is merely a stray comment, is whether the comment stands alone as an isolated utterance instead of being part of a "pattern of biased comments." (63) Courts have found that even comments like one that the employer is a "Christian organization" and that "all Arabs [are] terrorists," are stray comments where they appear unconnected to other expressions of exclusion or animus. (64)

However, this theory also does not appear to be a valid reason to preclude the consideration of evidence at the summary judgment stage, because a lone comment may be indicative of the bias or animus that one harbors. (65) Even the courts that seem to concede this logic, however, employ an exacting standard with respect to the rest of the context in which the remark was made. For example, in 2009, the Seventh Circuit reiterated that "[a]n isolated comment ... is typically insufficient to create an inference of discrimination, but it may suffice if it (1) was made by the decision-maker, (2) around the time of the decision, and (3) referred to the challenged employment action." (66)

Typically, courts will note that a comment is "isolated" in order to corroborate a determination of "strayness" that has already been premised on another factor, such as the comment's having been made too long ago or uttered by a non-decision maker. …