Taking in Strays: A Critique of the Stray Comment Doctrine in Employment Discrimination Law

I. Introduction A decision maker repeatedly used the word "boy" when addressing two African-American employees, who then did not receive a promotion for which they had applied. (1) A Puerto Rican doctor whose employer did not renew her contract proffered testimony that her employer's Director of Clinical Services said, "'Dominican doctors were better' than 'the other physicians who were there, who were Puerto Rican.'" (2) In each case, despite the fact that a jury rendered a verdict for the plaintiff, the court held that the comments were insufficient as a matter of law to evince employment discrimination. (3) Significantly, in each of these cases, the court used an increasingly amorphous and insidious doctrine called the "stray comments" or "stray remarks" doctrine to wholly or partially devalue what was alleged to be probative evidence. (4) The United States Supreme Court looks to have unwittingly created this doctrine in a decision over twenty years ago, (5) and it has operated since then, unchecked and hardly discussed, to aid courts in holding that a revealing or indicative comment that an employment discrimination plaintiff proffers is insufficient as a matter of law (as opposed to merely a matter of fact) to prove the discrimination alleged. (6) Moreover, courts have interpreted the word "stray" to mean different things, including, but not limited to, too far removed in time, too out of context, and too isolated, as a matter of law, (7) to permit a plaintiff's case to go forward or to sustain a jury verdict. Indeed, the dictionary defines the word "stray" as: 1: having strayed or escaped from a proper or intended place 2: occurring at random or sporadically 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. …