When are discriminatory remarks by other supervisors relevant at trial?

One of the most vexing issues in employment discrimination law is whether discriminatory remarks by supervisors in the workplace may be admitted in evidence at trial. The plaintiff wants the jury to hear the evidence because these remarks show that she worked in a discriminatory atmosphere. The defendants want the evidence excluded because it may cause the jury to rule against the company simply because it employs bad people. As non-binding trial court rulings usually provided the only guidance on this issue, I have always wondered if the Court of Appeals would get around to articulating a legal standard. That day has arrived.

The case is Henry v. Wyeth Pharmaceuticals, Inc., decided on August 4. I wrote about the retaliation part of Henry in this blog post. But there's more to the Henry case than retaliation. The Second Circuit also provides guidance on the admissibility of evidence that may help the plaintiff win the case by showing that supervisors in general harbored racial or sexist views.

This issue arose because Henry sued Wyeth for racial discrimination. One manager, Bracco, egged on a black employee to sue him for discrimination because she'd lose the case anyway since his supervisors were black. He also told others at work that this woman "tried to put voodoo on me." A Haitian-American employee accused a manager, Vitanza, of saying that a malfunctioning alarm system was a "tar baby." A third manager, Wardrop, joked about voodoo to a subordinate but was not reprimanded for it. Vitanza also dropped his pants and made gestures to make fun of Hispanic youth. The trial court excluded all of this evidence.

Here's the legal standard the Second Circuit (Leval, Pooler and Parker) sets out in determining whether this kind of evidence is admissible at trial:

The district courts in this circuit have developed a standardized approach for applying these concepts to individual cases. In determining whether a remark is probative, they have considered four factors: (1) who made the remark (i.e., a decision-maker, a supervisor, or a low-5 level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process). While we caution that none of these factors should be regarded as dispositive, we think this framework will often provide a useful approach to the admission or exclusion of remarks not directly related to the adverse action against the plaintiff, and employ it here.

Trial courts enjoy great discretion to admit or deny evidence, and the Second Circuit rarely orders a retrial on these issues. It should be no surprise that Henry does not get a new trial on his discrimination claim despite the district court's rulings, mostly because these managers either did not play any role in Henry's personnel decisions which predicate the lawsuit or the remarks were made too long ago to be relevant. Some of the comments could be deemed discriminatory, i.e., the "tar baby" reference, but although the guy who said it did act against Henry, the comment was not made in the context of any personnel decisions and, the Second Circuit says, it was also properly excluded from trial because it may have so offended the jury that it might have ruled against the company for continuing to employ him. As for the anti-Hispanic gestures, they may have been relevant and therefore Judge Conner could have allowed them into evidence, but that is not enough for a retrial in light of what the Court of Appeals deems overwhelming evidence that this particular manager was not motivated by discrimination in giving Henry a bad performance review.