Silicon Valley Watcher - Former FT journalist Tom Foremski reporting from the intersection of technology and media

Calif. Supreme Court Ruling Favors Employees In Google Age Discrimination Suit

Posted by Tom Foremski - August 5, 2010

As Silicon Valley's population gets older, age discrimination in the workplace is a very real issue for many people.

Earlier today the California Supreme Court addressed two issues related to an age discrimination suit filed against Google.

Ivan Alexander, representing Eric Steinert, an employment partner at law firm Seyfarth Shaw in San Francisco, explains the ruling:

In the case Reid v. Google, plaintiff Brian Reid, a director of operations and engineering at Google, was 54 years old when fired by the company in 2004. Reid's age discrimination lawsuit was based in part on negative age-related comments made by employees (other than his supervisor) in the workplace; the plaintiff alleged that his co-workers often referred to him as an "old fuddy-duddy" and used other similar derogatory appellations.

The trial court granted Google's motion for summary judgment, and the appellate court reversed.

The California Supreme Court addressed two issues:
-first, whether evidentiary objections are waived on appeal if the trial court does not rule on them;

-second, whether California should follow the federal "stray remarks" line of cases.

The federal "stray remarks" doctrine holds that statements made by employees who are not involved in the challenged employment decision cannot be considered in support of a discrimination claim.

Stray remarks cases are frequently used to support employer motions for summary judgments where the discrimination claim lacks direct evidence of discrimination, but is rather based on negative comments in the workplace regarding the protected status made by employees other than the direct supervisor.

The California Supreme Court decided that waiver does not depend on whether a trial court rules expressly on evidentiary objections and that Google's filing of written evidentiary objections before the summary judgment hearing preserved them on appeal.

The Court also held that application of the stray remarks doctrine is unnecessary and its categorical exclusion of evidence might lead to unfair results.

Mr. Steinert, who has represented employers in disputes involving issues of wrongful discharge and age discrimination, noted that the stray remarks portion of the decision is very unfavorable to employers.

Mr. Steinert observed that the Reid decision is reminiscent of the California Supreme Court's rejection of the federal Ellerth/Faragherdefense in the 2003 McGinnis decision.

"In McGuiness, the Court rejected the more robust Ellerth/Faragher defense, which raised a complete defense to liability if the employee did not initially pursue harassment claims internally before filing suit," Mr. Steinert said. "The court rejected the defense in favor of an 'avoidable consequences' doctrine with may reduce damages based on the employee's pre-litigation conduct -- but does not act as a complete defense to employer liability."

In both cases, Mr. Steinert noted, the California Supreme Court rejected more robust employer defenses under federal law in favor of jurisprudence more favorable to employees.

"As a practical result, employers will win fewer age cases on summary judgment," Mr. Steinert said. "More cases will go to trial and presumably more evidence will come in at trial regarding general workplace comments not made by direct supervisors or decision makers."


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