A California employer can’t get a discrimination case thrown out just by labeling a supervisor’s or coworker’s comment a “stray remark.” The California Supreme Court rejected that shortcut in Reid v. Google, Inc. (2010) 50 Cal.4th 512, holding that courts must weigh comments with the rest of the evidence on summary judgment. Who said it, when, and in what context still matter. The defense is a strong record of the real reason for the decision, not a rule that makes the comments disappear.
What is the stray remarks doctrine?
It’s a federal rule of thumb that treats some workplace comments as irrelevant to whether a decision was discriminatory.
The Reid court described it this way: “statements that nondecision makers make or that decision makers make outside of the decisional process are deemed ‘stray,’ and they are irrelevant and insufficient to avoid summary judgment.” Federal courts built the doctrine from a concurring opinion in a 1989 Supreme Court case and used it to set aside comments like a coworker calling an employee old, when the coworker had nothing to do with the decision.
Employers like the doctrine because it lets a court decide early that a comment doesn’t count. California doesn’t allow that categorical approach.
What did the California Supreme Court decide in Reid?
That courts can’t exclude comments as a category, but can weigh them in context.
The plaintiff, hired at 52 as a director of operations and engineering, claimed that an executive called his ideas “obsolete” and “too old to matter,” and that coworkers called him an “old man” and an “old fuddy-duddy.” Google argued those were stray remarks by people who didn’t make the decision. The court disagreed, reasoning that “strict application of the stray remarks doctrine, as urged by Google, would result in a court’s categorical exclusion of evidence even if the evidence was relevant.”
The opinion grounded that result in the summary judgment statute. Code of Civil Procedure section 437c(c) says the court “shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence.” A rule that tells courts to ignore a class of evidence doesn’t fit that text.
Do workplace comments still have limits as evidence?
Yes, and Reid says so.
The same opinion acknowledged that “the stray remarks cases merely demonstrate the ‘commonsense proposition’ that a slur, in and of itself, does not prove actionable discrimination.” It added 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.” And it listed the factors that remain fair game: “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.”
Those factors are the defense. A single comment by a coworker two years before a layoff, with no link to the people who chose who’d be laid off, is weak evidence, and a court can still say so. What a court can’t do is ignore it without looking at the rest of the record.
| Factor Reid lists | Stronger for the employer | Weaker for the employer |
|---|---|---|
| Who made the comment | A coworker with no role in the decision | The decision-maker, or someone who influenced the decision |
| When it was made | Long before the decision | During the decision or close to it |
| Context | Unrelated to the employee’s job or the decision | Made while discussing the employee’s performance, role, or future |
| Other evidence | A documented, consistent reason for the decision | Shifting reasons, or a replacement who fits the comment’s theme |
Influence is where these cases overlap with cat’s paw liability. Reid noted that a comment by someone who isn’t the formal decision-maker can still matter if that person shaped the outcome, the same theory the firm covered in its post on cat’s paw liability.
What should employers do about evidentiary objections on summary judgment?
Make fewer, better objections, and make sure the important ones get ruled on.
Reid’s other holding is procedural and still matters in every summary judgment motion. Google filed “31 pages of objections, raising more than 175 separate objections,” and the court warned that litigants “should focus on the objections that really count.” The Legislature later addressed the same problem. Section 437c(q) now provides that “the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”
The practical lesson is that objections to a plaintiff’s declaration about comments should be targeted. Hearsay, lack of personal knowledge, and speculation about what a speaker meant are often legitimate. Blanket relevance objections to every comment usually aren’t, after Reid.
How can a company reduce the risk from workplace comments?
By keeping comments out of decisions and keeping decisions on paper.
Supervisors who talk about an employee’s age, health, pregnancy, or background while discussing that employee’s job create the most dangerous kind of evidence. Training managers to keep those topics out of performance and staffing conversations is cheap. So is requiring a written reason, prepared at the time, for every termination and demotion. When a comment surfaces in litigation, a contemporaneous reason that never changed is what lets a court see the comment as isolated.
Employers should also take complaints about comments seriously when they’re made. An HR file showing a prompt response to an “old man” joke reads very differently from one showing nothing happened.
Chat tools deserve attention too. Comments that once would have been said aloud and forgotten now sit in team messaging channels for years, and plaintiffs’ lawyers request them early. A company that learns about a problem thread only in discovery has lost the chance to show it responded. Periodic reminders about professional conduct in written channels, and a clear path for employees to report comments, give the employer something to point to when a remark turns up in a document production.
What to do when a lawsuit relies on workplace comments
- Preserve emails, chat messages, texts, performance reviews, and the decision file for the employee, under a litigation hold once a claim arrives.
- Calendar the response date on the CRD complaint, demand, or summons, and check for an arbitration agreement and an EPLI policy with notice requirements.
- Identify who allegedly made each comment, what role that person had in the decision, and who else heard it, and stop any further action against the employee that could look like retaliation.
- Pull the documents the claim depends on: the reason given for the decision at the time, the decision-maker’s notes, any complaint about the comments, and how HR responded.
- Talk to a lawyer before responding, contacting the employee or their lawyer, or offering anything to settle.
Claims built on remarks are a common part of employer defense in California employment cases, and the decision file usually carries more weight than the remarks.
FAQ
Can one offensive comment win a discrimination case?
Rarely on its own. Reid recognized that a slur, by itself, doesn’t prove actionable discrimination, and that an isolated remark may have little probative value. But combined with other evidence, such as a weak or shifting explanation for the decision, a comment can help a plaintiff get past summary judgment and to a jury.
Does it matter that the comment came from a coworker rather than a manager?
Yes. Who made the comment is one of the factors Reid said courts should consider. A coworker with no role in the decision carries less weight than a decision-maker. But if that coworker influenced the decision, for example by reporting problems or giving input, the comment can matter more.
Should a company object to every comment the plaintiff cites?
No. Reid criticized blanket objections, and section 437c(q) lets the court rule only on objections it considers material. Focused objections on hearsay, personal knowledge, and speculation are more effective than relevance objections to every item, and they keep the court’s attention on the evidence that matters most.
Do federal courts in California still use the stray remarks doctrine?
Federal courts follow federal summary judgment standards and their own precedent, so stray remarks arguments can still come up there, even on FEHA claims. In California state court, Reid controls. Employers sued in state court should plan their summary judgment strategy around the totality-of-the-evidence approach.
If a former employee’s lawsuit is built on workplace comments
If your company has been sued by a former employee who points to remarks by supervisors or coworkers, the record of the real reason for the decision usually decides how far those remarks go. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including discrimination claims based on alleged workplace comments. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
Code of Civil Procedure section 437c; Reid v. Google, Inc. (2010) 50 Cal.4th 512.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.