The End of the Long-Standing “Stray Remarks” Defense in Employment Lawsuits?

September 2, 2022

The Massachusetts Appeals Court issued a precedent altering decision partially centered on the long-standing defense in employment lawsuits known as the “stray remarks” doctrine. Formerly, when analyzing whether a statement could serve as direct evidence of discriminatory animus against an employer the court considered several factors. First, the court evaluated whether a decision maker was the speaker and whether the remark was related to the employment decision. Secondly, the courts looked at factors such as whether the comment was made before (having the ability to affect the decision) or after the employment decision, and the content of the remark. Previously, if those factors were in favor of the employer defendant, the courts have disregarded evidence of discriminatory remarks presented in a motion dealing with the sufficiency and admissibility of evidence, such as a motion for summary judgment.


Recently, in Adams v. Schneider Electric USA, the Appeals Court held that a motion for summary judgment awarded to Schneider Electric, in a lawsuit against a ten-year employee, released during a batch of reduction in force (RIF) layoffs should be reversed and was decided in err. In doing so, the judges held that there was sufficient evidence in the record for a reasonable jury to conclude that the RIF was proposed to carry out the larger corporate plan to target and replace its older work force. The Court determined that there was sufficient evidence of a high-level directive to replace Schneider’s older work force with younger talent “from which a jury could find that the RIF itself was tainted even if the person who selected the employees for the RIF [did so] neutrally.” As evidence of such, the Court pointed to an October 2015 e-mail in which a vice president told another employee that the company needed age diversity and younger talent. Contrary to the established Massachusetts precedent, the Court also pointed to comments made after the terminations and more importantly, not made by the Schneider employee who terminated Adams. This trampling of precedent did not go unnoticed by the Court, however. The judges reasoned that comments once considered stray and having no nexus to the employment decision, can “still be relevant to the employer’s contemporaneous thinking.” The judges continued by reasoning that any comments “made by those who have power to make employment decisions” can appropriately be considered as evidence of a larger discriminatory animus, and can no longer be dismissed as mere “stray remarks.” 


Essentially, the justices determined that even if the RIF was born from a non-discriminatory purpose, allegedly discriminatory remarks by higher-level managers can allow a jury to determine that the RIF was discriminatory from inception because of “the motives of the corporate managers,” not just the supervisor carrying out the employment decision, “should be treated as the motives for the decision.” In doing so, the majority had departed from the long-standing legal rule that “stray remarks” are insufficient to prove discriminatory bias by holding that the rule can never apply to a manager who has the power to make employment decisions. After this decision, statements from managers made after an employee is laid off could be used to persuade a jury that, although the direct actor harbored no discriminatory animus, they were “the innocent pawn of an undisclosed corporate strategy tainted by unlawful discriminatory animus.” 


This case will undoubtedly change the landscape for both plaintiff and defense employment counsel for the foreseeable future. Moving forward, it is essential that supervisory and management level decision makers are careful when discussing company-wide strategy that may impact workforce numbers. “Stray remarks,” that were once considered irrelevant and insufficient at the dispositive motion stage of litigation, are now considered to be signs of discriminatory strategy, and sufficient evidence for a jury to make a finding against an employer.  Employers, in addition to taking a second look at their own communications and language concerning RIF’s and the like, should be counseling their supervisors and managers to be mindful of their communications, even long after a RIF or other adverse employment action, because the comments made can be imputed on the employer as a whole.  Contacting your existing employment counsel at the first thoughts of laying off employees can help protect your business from legal liability and help you navigate the newly muddied water of reductions of force in Massachusetts.


For more information on this, or any other employment and labor law matter, please contact the attorneys at The Royal Law Firm LLP; (413) 586-2288. We know business matters!





When Bias Creeps into Independent Investigations It All Becomes Tainted.

April 25, 2025
Case Overview: An Asian-American postal worker, Dawn Lui, allegedly became the target of a racial and gender-based harassment campaign after being assigned to lead a new location in 2014. Lui started working at the United States Postal Service (USPS) in 1992 and was promoted to postmaster in 2004, without issue or complaints. Both Lui and her supervisor agree that the coworkers at her new location called her racially motivated names, created false complaints and racially based rumors like that she couldn’t read or speak English, and created a rumor that she was engaging in a sexual relationship with her supervisor. Lui states that she was interviewed in an internal investigation about the alleged sexual relationship. She believes the allegations were created because the supervisor in question is married to an Asian woman. The supervisor claims that HR disregarded his complaints about racial bias regarding the employee. Where They Went Wrong: HR and labor relations officials proposed a demotion for Lui based off of the contested allegations. The demotion required Lui’s supervisor’s signature to move forward. The supervisor refused to sign the demotion and again brought up his concerns that the allegations were baseless and racially motivated. Because of his refusal to sign the demotion paperwork, he was temporarily removed from his position and replaced. His replacement signed off on the demotion and an investigation was not launched after the supervisor’s refusal. Lui appealed the demotion internally and a “neutral” official started an “independent” investigation. USPS argued that this investigation cleared them of making racial and sex based discriminatory actions. Given the possible racial bias and demotion that occurred in this case, Lui filed suit against USPS alleging disparate treatment, a hostile work environment, and unlawful retaliation under Title VII. After the United States District Court for the District of Washington granted summary judgment to USPS on all of the Plaintiff’s claims, the case was appealed to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit affirmed the USDC’s granting of summary judgment on the retaliation claim, but they found the USDC erred in their finding that the Plaintiff failed to establish a prima facie case of discrimination when they issued summary judgment on the disparate treatment and hostile work environment claims. The Ninth Circuit found that Lui had been removed from her position and demoted to a smaller location with a pay cut, and she was replaced by a white man with less experience. The Ninth Circuit also found that there was a genuine dispute of material fact regarding whether the decision to demote Lui was independent or influenced by subordinate bias. The official never interviewed witnesses, ignored the reports about racial bias, and solely went off the existing reports used in the original decision. The concerns that the employee’s supervisor raised that the allegations were fabricated and racially motived had not been investigated or addressed. The court ruled that a jury could reasonably find that the “independent” investigation wasn’t truly independent. The Court relied heavily on the Cat’s Paw theory of liability. The Cat’s Paw Theory is an employment discrimination doctrine name after the fable “the Monkey and the Cat” by Jean de La Fontaine. In the fable the cat is enticed by the monkey to retrieve chestnuts from the embers of a fire so they both can share. In the fable the monkey eats the chestnuts while the cat has nothing but burned paws. It came to refer to someone doing dirty work on another’s behalf. It made its way into employment law in Staub v. Proctor Hospital, 562 U.C. 411 (2011). An employer can be held liable for discrimination if the information used in the employment decision was based off a biased supervisor, or other biased employee. Even if the ultimate decision maker was not biased, the information remains tainted. Employer Takeaways: Independent investigations are only independent when an independent investigator re-reviews the information available and interviews witness(es) directly. Having an investigator blindly sign off on an investigation that others allege to be racially motivated without due diligence to verify a lack of bias allows bias to seep into employment decisions. If a separate investigation had been conducted, with fresh interviews from a non-biased 3 rd party, the decision would have been free of the original allegations, and the employer would have avoided liability in subsequent suit. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

Royal Law at Thunderbirds Hockey Playoff Game in the Executive Perch

April 21, 2025
Friday April 18th: Amy Royal, Fred Royal, and Derek Brown attended the Springfield Thunderbirds playoff game! They enjoyed watching the Thunderbirds play the Charlotte Checkers from the Executive Perch.