This Article argues that the stray comments "doctrine" does more harm than good and that those courts wishing to grant a defendant summary judgment on a claim should have to do so by looking at the totality of the circumstances, rather than summarily using a single facet of a comment to dismiss it from consideration. It points out that the doctrine and its premises fail to comport with even a basic understanding of social science and how people foment, act upon, and reveal discriminatory bias. Interestingly, another judge-made doctrine built into employment discrimination law - the same actor inference - stands in stark asymmetry with the stray comments doctrine. The former presumes that attitudes evinced inhere within people for years at a time while the latter declares that no plausible nexus exists between expressed animus or other type of bias and an action taken mere days or weeks later. This Article draws attention to a phenomenon that, used unsparingly over two decades ago, has grown unfettered into a grave problem for employment discrimination plaintiffs. It calls for a much-needed return to an adjudication of employment discrimination cases that comports with the summary judgment standard and factors in all potentially relevant evidence, construing all facts in the light most favorable to the non-movant, who usually is the plaintiff.
Kerri Lynn Stone,
Taking in Strays: A Critique of the Stray Comment Doctrine in Employment Discrimination Law,
77 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol77/iss1/7