Wednesday, April 02, 2008

Stray remarks - what ever happened to "at will?"

Today in class, we spent some time arguing about when stray remarks should or shouldn't be taken into legal consideration. It appears to be a very gray area of law that deserves protection under the 1st ammendment, yet also merits scrutiny in employment law - especially in discrimination cases. In Professor Prenkert's explanation, a stray remark is any statement made outside the actual employment decision's parameter. So, unless an employer says, "I'm firing you because you're an old fart," any derrogatory statement directed at age, sex, etc. made out of context is therefore a stray remark. The question, however, is how much legal gravity should these statements hold when a court hears a discrimination case? Do "innocent" jokes pose a threat to a comfortable work environment, or do plaintiffs who use them as evidence against employers present a situation similar to what we read/saw in Oleanna? I'm not sure if there's any right answer, but a few articles I found online help to shed light on the issue.
In judging the relevance of a stray remark, a statement must be considered in whether or not it is "substantially outweighed by the risk of unfair prejudice." Therefore, a remark needs to judged upon whether or not a statement is (1) made by the decision maker or agent of the company, (2) isolated, (3) timely in terms of the decision, and (4) ambiguous or clearly reflective of a discriminatory bias (Krohn v. Sedgwick James of Michigan, 2001 ). Taking these factors into consideration, it appears as though a standard of discernment can be implemented in cases where stray remarks arise. Does everyone think that this standard accounts for all the right criteria, or are there stipulations that need be added/discarded?
Putting all this into perspective, however, another article from Phelps Dunbar shows that stray remarks can significantly alter the outcome of certain cases. The case outcomes go to prove that stray remarks (which cover the criteria above) provide ample evidence that a decision is discriminatory. Although this clarifies some of the confusion discussed in class today, the standard isn't necessarily complete, and may or may not hold relevance to the entire realm of jokes and anecdotes. I'd like to hear what everyone thinks on the issue, and maybe how it affects the nature of the at-will contract?


Blogger spoehner said...

You made an excellent point in class today - a stray remark in and of itself is not enough to provide a basis of discrimination, but I definitely think that depending on the context in which the remark was made counts. Remarks made in the workplace on more than one occasion should be admissible as evidence. However, a one time joke in a bar, I would argue would be less relevant. Again, which I think these articles demonstrate very well, is that there really is no clear line. I think the solution would be to always conduct yourself, especially in one's speech, in a professional manner in the workplace.

8:14 PM  

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