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Second Circuit Rejects “Stray Remark” Argument

At Famighetti & Weinick, we hear time and again from employers’ attorneys that allegations that a defendant made just one or two comments with a discriminatory undertone are nothing more than “stray remarks” which cannot support a basis for a discrimination claim.

Although New York’s highest Federal Court addressed this issue in 2007 and rejected that argument, defendants nonetheless keep making the same argument. Once again, in the case Tolbert v. Smith, decided on June 24, 2015, the Second Circuit Court of Appeals rejected the “stray remark” argument and reaffirmed that discriminatory remarks made by decision makers can establish the defendant’s discriminatory motivation in making an employment decision.

The Tolbert decision contains other important employee friendly points of law, also. Notably, the Court held that additional evidence that an employer acted with an improper motivation is where the employer departed “from procedural regularity, such as failure to collect all available evidence.” We frequently see this type of evidence in our cases.

Further, in Tolbert, the defendants argued that the plaintiff did not establish an “adverse employment action.” In other words, in employment discrimination cases, a plaintiff must establish that the employer took some action against the employee which is actionable under the law. In Tolbert, the defendants extended the plaintiff’s probationary period. Since they continued to employ him in the same probationary position, they argued there was no “adverse” action. The Circuit Court rejected this argument because the defendants also denied the plaintiff tenure. Tenure would have given the plaintiff the employment benefit of being terminated only upon a showing of cause, instead of continuing in the probationary position from which he could be terminated for any lawful reason. Accordingly, the defendants did deny plaintiff a term of employment and took an actionable adverse employment action.

Finally, though addressed in just a footnote, the Tolbert decision also reminds us that an employment decision tainted by discrimination at any stage of the employment decision process may still be actionable even though the ultimate decision maker did not have an any “illegitimate bias.” For example, in Tolbert, the principal was the actor alleged to have the discriminatory animus. The superintendent, however, ultimately made the decision. But, because the principal made a recommendation, the decision was ultimately tainted by discrimination.

While not a groundbreaking decision, Tolbert reaffirms some important points in employment law. If you have questions about the Tolbert decision, or any other questions about employment law, contact the employment lawyers at Famighett & Weinick, PLLC at 631-352-0050 or visit

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