What Did They Say? Deciphering When Remarks Are Evidence Of Discriminatory Intent Is A Difficult Task

Originally published in New York Law Journal

A well-known expression says, "If it looks like a duck, quacks like a duck, and swims like a duck, it must be a duck." One should not be misguided by simply relying upon this proverbial type of analysis when assessing an employer's exposure in a discrimination case. There are times when a verbal remark looks discriminatory and sounds discriminatory, but does not demonstrate that an employer made an adverse employment decision because of a discriminatory intent. On the other hand, a seemingly neutral remarkfor example, that an older employee "works well with senior citizens"may be admissible evidence of an employer's discriminatory intent. Courts have characterized remarks that do not directly evidence an employer's discriminatory intent as "stray remarks."

Deciphering when a remark is evidence of an employer's discriminatory intent or when it is merely a stray remark is a difficult undertaking, requiring consideration of the particular facts and circumstances presented.

'Burden-Shifting' Formula

To establish a prima facie case of discrimination based upon disparate treatment under either Title VII or New York law, a plaintiff must show that he: (1) belonged to a protected class, (2) was qualified for the position he held or sought, and (3) suffered an adverse employment action (4) under circumstances giving rise to an inference of discriminatory motivation. Terry v. Ashcroft, 336 F3d 128, 138 (2d Cir. 2003); Farias v. Instructional Sys., Inc., 259 F3d 91, 98 (2d Cir. 2001); Cruz v. Coach Stores, Inc., 202 F3d 560, 565 (2d Cir. 2000).

After a plaintiff has established a prima facie case of discrimination, the burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. If the employer does so, the burden shifts back to the plaintiff to prove that the employer's stated reason is merely pretextual and that discrimination was an actual reason for the adverse employment action. Reeves v. Sanderson Plumbing Prods., Inc., 530 US 133, 143 (2000).

The ultimate question is whether the employer intentionally discriminated. Proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reasonis correct." Id. at 147. It is not enough "to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." Id. Thus, it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. Id. See also Classic Coach v. Mercado, 722 NYS2d 551 (2d Dept. 2001) (adopting Reeves under New York law).

A verbal remark constitutes evidence of discriminatory motivation when a plaintiff demonstrates that a nexus exists between the purportedly discriminatory remark and an employer's adverse employment decision regarding the plaintiff. Schreiber v. Worldco, LLC, 324 FSupp2d 512, 518-19 (S.D.N.Y. 2004). However, the mere utterance of another employee's overtly improper remark does not, alone, guarantee that such a remark is admissible evidence of an employer's discriminatory intent. A purportedly discriminatory remark can be a mere stray remark that does not support an inference of discriminatory motivation. Danzer v. Norden Sys., Inc., 151 F3d 50, 56 (2d Cir. 1998).

The relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decisionmaker was motivated by assumptions or attitudes relating to the protected class. Indeed, even inoffensive remarks may strongly suggest that discrimination motivated a particular employment action. Tomassi v. Insignia Fin. Group, Inc., 478 F3d 111, 116 (2d Cir. 2007). For example, a supervisor's comment that an older employee was well-suited to work with seniors is not offensive; however, it has a tendency in certain circumstances to show that the supervisor may believe, because of the employee's age, that she was not well-suited to deal with the younger customers. Id.

The U.S. Supreme Court addressed the stray remark doctrine in Reeves v. Sanderson Plumbing...