Taking in Strays: A Critique of the Stray Comment Doctrine in Employment Discrimination Law

This Article traces the genesis of this misguided doctrine, its proliferation, and it’s many flaws. It explains what the doctrine has come to mean and which facets of a comment can render it “stray” as a matter of law. Part II evaluates this unwieldy and untenable doctrine and its haphazard and misguided application over the past two decades. Specifically, it was never intended to be a formal doctrine. As employed by courts, the term “stray” means too many things and is too ambiguous for the doctrine to be coherent or effective. Moreover, courts ascribe varying degrees of significance to the designation “stray,” with some courts using it to deem evidence to be circumstantial rather than direct (and thus invariably insufficient), and other courts using it to deem potentially viable evidence worthless as a matter of law. 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.