The California Supreme Court ruled today on a pretty big age-discrimination case against Google that folks in the employment-law sector think could have significant repercussions in the HR profession.
The decision in the case Reid vs. Google basically rules on two things: one, whether evidentiary objections are waived on appeal if a trial court does not rule on them (the court says they are not) and two, whether California should follow the federal “stray remarks” doctrine, which basically says statements made by employees who are not involved in the employment decision a discrimination suit is based on cannot be considered in support of a discrimination claim. (The court says that doctrine is unnecessary and should not be followed.)
I won’t spell all the details of the case out here. They’re in the ruling linked above. What I will share are concerns from two employment attorneys who see some real precedent-setting effects on employers because of this, and not just employers in California.
Eric Steinert, an employment partner at Seyfarth Shaw in San Francisco, says that, “as a practical result [of this ruling], employers will win fewer age cases on summary judgment. More cases will go to trial and presumably more evidence will come in at trial regarding general workplace comments not made by direct supervisors or decision makers.”
Anthony Oncidi, who heads the Labor & Employment Law Group in Proskauer Rose’s Los Angeles office, seconds that and adds that the stray-remarks decision “points to the need for HR to be more comprehensive in doing complete investigations to determine whether or not there was discrimination” after a complaint is filed.
It will no longer be sufficient, he says, “just to run the allegation down with a supervisor and not ask any further questions. HR will really need to ‘tease’ it out of the [complainant] now to get him or her to say there is or is not anyone else who did or did not make [similar discriminatory] comments.”
Oncidi also says it will now be “very important to bear this ruling in mind” when you’re conducting anti-discrimination training and do everything you can to train “as many people as possible about what they can and cannot say” about a co-worker or employee.
He also thinks more HR leaders will be putting arbitration agreements in place now, because the ruling makes it harder to get summary judgment granted before trial — something many employers relied on up to now as a way to dismiss what they considered to be frivolous lawsuits.
And don’t sit back on the fact that it’s only the California (not the U.S.) Supreme Court. Oncidi says this is the most broad-based, lengthy and definitive ruling in this legal area to date, “reviewing all the existing stray-remark cases throughout the country.”
“I would not be surprised,” he says, “if other courts look to this as precedent.”