What Is the Stray Remarks Rule and Why Does California Reject It?
How California Treats Biased Comments in Discrimination Cases
Key Takeaways: The stray remarks rule is a federal doctrine that lets courts give little or no weight to isolated discriminatory comments, especially comments from non-decisionmakers or comments not tied to the employment decision. California has largely rejected this rule for FEHA claims, first in Reid v. Google, Inc. (2010) and then in Government Code § 12923, which was added by SB 1300 in 2018. Under California law, a judge generally cannot set aside biased remarks as "stray." Courts weigh them in context with all the other evidence. In harassment cases, a single incident may be enough to create a triable issue, and section 12923 states that harassment cases are rarely appropriate for summary judgment. Even so, a remark’s weight still depends on its content, timing, and speaker. Careful notes about biased comments and early legal review may help an employee show that an employer’s stated reason for a firing is a pretext.
The stray remarks rule is a doctrine some federal courts use to give little or no weight to isolated discriminatory comments, especially comments made by someone who did not decide to fire the employee or comments made apart from the firing decision. California has largely rejected that approach. The California Supreme Court did so in Reid v. Google, Inc. (2010) 50 Cal.4th 512, and the Legislature confirmed it in 2018 when it added Government Code § 12923. A biased comment from a supervisor generally is weighed together with all the other evidence, and a judge generally cannot simply disregard it as "stray." Picture a six-figure employee with 30 years at a large corporation who is fired weeks after requesting medical leave. If that employee has an email in which a manager calls them "too sick to keep around," the email may carry real weight in a California case, though how much depends on the full record.
If a supervisor’s texts, emails, or comments suggest that bias played a role in your firing, Kent | Pincin can review your documentation and explain your options. Call (310) 424-4991 or contact us now to schedule a confidential consultation.
Where the Stray Remarks Rule Came From
The stray remarks rule grew out of federal employment discrimination cases, where courts tried to separate meaningful evidence of bias from offhand comments. Federal judges often weigh who made the comment, when, and whether it was connected to the employment decision. A comment that fails these tests may be labeled "stray" and given little or no weight, sometimes at summary judgment before a jury hears it. Federal courts do not all apply the doctrine the same way, and scholars have long criticized it. A UCLA Women’s Law Journal issue is among the academic work examining how courts treat discriminatory remarks in gender and workplace cases.
Why Critics Find the Federal Approach Troubling
The main criticism is that the doctrine lets judges decide questions of credibility and meaning that usually belong to juries. When a court calls a comment "stray," it often decides as a matter of law that the comment cannot support an inference of bias, yet reasonable people might read it differently. Bias also seldom shows up in a single official document. It tends to appear in small pieces, such as a remark at a meeting, a text message, or a joke in an email chain.
How Reid v. Google Changed the Analysis
In Reid v. Google, the California Supreme Court declined to adopt the stray remarks doctrine for claims under the Fair Employment and Housing Act (FEHA). The plaintiff was an older executive who alleged age discrimination. He pointed to comments from coworkers and supervisors, including a decisionmaker, describing him as "slow," "fuzzy," and an "old man." The trial court granted summary judgment for Google, and the Court of Appeal reversed. The Supreme Court affirmed, holding that courts deciding summary judgment must consider all the evidence, including remarks made by non-decisionmakers or not made in connection with the decision itself.
The court did not hold that every remark proves discrimination. It held that judges should weigh discriminatory remarks in context with the rest of the record and should not exclude them under a categorical rule. A stray remark alone may not create a triable issue, and its weight depends on the facts.
The Stray Remarks Doctrine California Rejected by Statute
In 2018 the Legislature codified California’s rejection of the stray remarks doctrine when it passed SB 1300 (Chapter 955, Statutes of 2018), which added Government Code § 12923 effective January 1, 2019. The section states the Legislature’s intent for how courts should apply FEHA’s harassment laws. You can read the full text of Government Code section 12923.
What Each Subdivision Says
The key subdivisions of § 12923 each address a different way courts had narrowed harassment claims:
- Subdivision (a): The harassment laws exist to give every Californian an equal opportunity to succeed at work. A plaintiff does not have to prove that their tangible productivity dropped because of harassment, a point drawn from Justice Ginsburg’s concurrence in Harris v. Forklift Systems.
- Subdivision (b): One incident of harassing conduct can be enough to create a triable issue about whether a hostile work environment existed, if the conduct unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. This rejects the Ninth Circuit’s decision in Brooks v. City of San Mateo (2000) 229 F.3d 917.
- Subdivision (c): Whether a hostile environment existed depends on the totality of the circumstances. A discriminatory remark may be relevant circumstantial evidence even if it was not made directly in connection with an employment decision or was made by a non-decisionmaker. This subdivision expressly affirms Reid v. Google.
- Summary judgment: Subdivision (e) affirms Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and states that harassment cases are rarely appropriate for disposition on summary judgment.
Federal Versus California: A Side-by-Side View
| Issue | Federal Stray Remarks Approach | California Approach |
|---|---|---|
| Remarks by non-decisionmakers | Often discounted or disregarded | May be relevant evidence (Gov. Code § 12923(c)) |
| Remarks unrelated to the decision | Often labeled "stray" | Generally weighed in context (Reid v. Google) |
| Single harassing incident | Generally insufficient unless extremely serious | May create a triable issue (Gov. Code § 12923(b)) |
| Summary judgment in harassment cases | More commonly granted | Rarely appropriate (Gov. Code § 12923(e)) |
Why This Matters for FEHA Discrimination Evidence
Biased comments matter because most discrimination cases depend on circumstantial evidence. Government Code § 12940(a) makes it unlawful for an employer to refuse to hire, to fire, or to discriminate in pay or in the terms, conditions, or privileges of employment because of protected traits, including race, religion, color, national origin, ancestry, disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and veteran or military status. Few employers admit to bias, so a supervisor’s comments may be circumstantial evidence that a protected trait was a substantial motivating reason for a termination.
Employers often argue at summary judgment that they had a legitimate, nondiscriminatory reason for the decision. Whatever reason an employer gives, remark evidence may help show that it is a pretext. To see how remarks fit with other proof, review our guide on what evidence proves workplace discrimination.
💡 Pro Tip: Write down the exact words, date, and witnesses for any biased comment as soon as you can, and keep copies of texts or emails somewhere other than company devices. Specific, contemporaneous details generally carry more weight than memories reconstructed later.
Harassment Claims and Single Incidents
FEHA treats harassment as a separate violation from discrimination. Government Code § 12940(j)(1) makes it unlawful for an employer or any other person to harass an employee, applicant, unpaid intern, volunteer, or contractor because of a protected trait. Proving harassment does not require loss of tangible job benefits. An employer is strictly liable for harassment by a supervisor. For harassment by coworkers or nonemployees, an employer is generally liable if it knew or should have known of the conduct and failed to take immediate and appropriate corrective action. Under § 12940(k), employers must also take all reasonable steps to prevent discrimination and harassment.
Limits of California’s Approach
California’s rejection of the stray remarks rule does not guarantee that a case will survive summary judgment or win at trial. Courts still decide how much weight a remark deserves in light of its content, timing, the speaker’s role, and the rest of the record. A vague comment made years before a firing may add little. Section 12923 speaks most directly to harassment claims. In discrimination claims, the analysis rests mainly on Reid, and courts may still grant summary judgment when the overall evidence is weak.
Frequently Asked Questions
1. Does California follow the stray remarks doctrine?
Generally, no. Reid v. Google and Government Code § 12923(c) reject applying the doctrine categorically to FEHA claims. Courts generally weigh discriminatory remarks along with all the other evidence.
2. Can a comment from someone who did not fire me be used as evidence?
In many cases, yes. Section 12923(c) states that remarks by non-decisionmakers may be relevant circumstantial evidence. How much weight the remark receives depends on context.
3. Is one harassing incident enough for a claim?
Under certain circumstances, it may be. Section 12923(b) provides that a single incident can create a triable issue about whether a hostile work environment existed.
4. Can my employer get my harassment case dismissed early?
It is possible, but California law makes it harder. Section 12923 states that harassment cases are rarely appropriate for summary judgment. Each case still turns on its facts.
5. What documents help most?
Texts, emails, images, and records of complaints you made are often valuable. The timing of a termination compared with a medical-leave request or a harassment report may also matter.
Turning Biased Comments Into Accountability
California law treats biased workplace comments as potential evidence, not as noise to be ignored. Through Reid v. Google and Government Code § 12923, California has largely rejected the federal stray remarks doctrine for FEHA claims. Whether remarks in your situation are enough depends on the full record, which is why careful documentation and early legal review can matter. An experienced stray remarks doctrine California lawyer can help evaluate how the evidence fits together.
If you were terminated after requesting medical leave, reporting harassment, or facing biased comments from a supervisor, Kent | Pincin can help you understand your rights. Call (310) 424-4991 or schedule your consultation today.
Disclaimer: This content is for informational purposes only and is not legal advice. Every case is unique, and results may vary. Consult an attorney about your specific circumstances.