184 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 6.16 Disregard of Federal Evidentiary Doctrines 6.16.1 Rejection of the “stray remarks” rule In America generally, courts rule as a matter of law (either on summary judgment or in a motion for judgment as a matter of law) against discrimination plaintiffs who rely on “stray remarks”—remarks made remote in time or otherwise disconnected from the challenged employment decision, remarks not made by anyone who made or influenced the decision, or remarks not directed to the plaintiff.313 In California it’s different. The Court of Appeal, in reversing a summary judgment for the employer in an age discrimination case, broadly repudiated the “so-called ‘stray remarks’ rule.” The Court of Appeal reasoned that the “stray remarks” rule would impermissibly permit trial judges to weigh evidence in ruling on motions for summary judgment.314 The Court of Appeal concluded that the plaintiff should have been able to thwart summary judgment with his assertions that co-workers (who had no apparent connection with the challenged employment decision) had called him “slow,” “fuzzy,” “sluggish,” and “lethargic.” In 2010, the California Supreme Court affirmed this reasoning, concluding that the alleged comments should be considered with all the evidence in the record.315 6.16.2 Rejection of the “same actor rule” In America generally, courts have followed the “same actor rule”: Where the same actor both hired and fired the same discrimination plaintiff within a short period of time, an inference arises that there was no discriminatory motive in the firing.316 So the reasoning goes: “[i]t hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological cost of associating with them), only to fire them once they are on the job.”317 . California courts also once followed this rule, in line with the general principle that FEHA interpretations should follow Title VII interpretations where the two statutes share the same basic purpose.318 Yet a Court of Appeal decision, upholding a jury verdict of race and gender discrimination, disputed the “same actor rule,” stating: “Evidence that the same actor conferred an employment benefit on an employee before discharging that employee is simply evidence and should be treated like any other piece of proof. … Placing it in a special category as a ‘rule’ or ‘presumption’ or stating it creates a ‘strong inference’ attaches undue influence to same actor evidence and threatens to undermine the right to a jury trial by improperly easing the burden on employers in summary judgment and postverdict motions.”319 Although the California Supreme Court agreed to review the case, the parties then settled the matter, leaving in doubt the status of the “same actor rule” for purposes of FEHA cases.320 6.16.3 Requiring admissibility of “me too” evidence Discrimination plaintiffs often seek to introduce evidence that other employees—who are not themselves plaintiffs—also suffered discrimination at the hands of the defendant employer. Federal and state courts generally treat “me too” evidence on a case-by-case basis, weighing the evidence’s probative value against its potential to create undue prejudice, confusion, or waste of time. The U.S. Supreme Court, in 2008, confirmed that there is no rule necessarily requiring trial courts either to admit or to exclude such “me too” evidence.321 In California it’s different. In 2011, a Court of Appeal decision overruled a trial court’s exclusion of “me too” evidence. The trial court had held that evidence of sexual harassment, to be admissible, must have occurred in the plaintiff’s presence, during her employment.322 The Court of Appeal reversed, holding that evidence of sexual harassment toward nonparty female employees—outside the plaintiff’s presence and without her contemporaneous knowledge—should have been admitted, to show the defendant’s sexual bias.323
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