When suing for discrimination there has long been an issue about what evidence is need to prove discrimination. There has been a notion that many discriminatory statements by supervisors are not evidence of discrimination but are simply what are known as “stray remarks”. This “stray remark” doctrine has allowed Judges to basically eliminate legitimate discrimination claims from even going to jury because the Judge believes that the remarks are not sufficient to prove discrimination but are simply “stray remarks”. However, the Supreme Court of the United States has been putting the breaks on the use of “stray remarks” as merely an excuse for a Judge to thrown out a legitimate case. Recently the 5th Cir. (one of the most notoriously anti-employee circuits which covers Texas) issued an opinion that actually helped employees. In the case of Goudeau v. National Oilwell Varco, L.P., ___ F.3d ___, 2015 U.S. App. LEXIS 12298 (5th Cir. 2015) When Maurice Goudeau was terminated by National Oilwell Varco (NOV) in 2011, he was 57 years old and had been working for the company (or its predecessors) for 18 years. 12 months before his termination, he was assigned to a new supervisor, who told him that “there sure [were] a lot of old farts around here,” asked Goudeau about the age of two older employees also assigned to this supervisor, and told Goudeau that he planned to fire both of them. Later, he also told Goudeau that he wore “old man clothes,” called him an “old fart,” and said that a smoking area was “where the old people met.”
Unbelievably a Judge threw out the claim stating that these statements were just “stray remarks”. This is even more amazing when you consider this supervisor fired two other older employees and did not even follow its own progressive discipline policy. This will show you haw unbelievably biased some Judges are against employment claims. Fortunately the 5th Cir. reversed the Judges decision and now Goudeau can actually go to a jury to have his peers decide if he has a valid age discrimination claim.
This case shows how important it is to document any comments made by Supervisors. In this case Goudeau was fortunant enough that the person making the claims was also the person who has authority to terminate his employment. What is sad is that Federal District Judge dismissed the lawsuit and forced Mr. Goudeau to appeal the case just to get his day in court. As an employment lawyer in El Paso, Texas I see many fired and injured workers who I believe have been discriminated against in employment, but as this case shows you don’t always get to a jury unless you have good solid evidence of the discrimination. That is why it can be important to see a lawyer before you are terminated so that you can get good legal advice on how to report the incident and hopefully head off the termination. Many companies will do the right thing if the discrimination is reported and if you report the discrimination in good faith, the employer is not allowed to retaliate against you for reporting discrimination.