Many employment discrimination claims are based on allegations that a manager made a comment noting the plaintiff's membership in a protected category. A case decided last month by the Second Circuit Court of Appeals demonstrates that such "stray remarks" alone are insufficient to carry the plaintiff's burden of proof. Fried v. LVI Services, Inc. involved an age discrimination claim by a terminated executive. He alleged that six weeks before his termination, the new company CEO commented that he was 71 years old, and asked him how long he intended to work. This comment was offered as the main evidence that age was a factor in the termination decision.

The Second Circuit affirmed dismissal of the claim on summary judgment. While acknowledging that the comment presented some evidence of age as a factor in the termination decision, the court concluded that the plaintiff was not able to demonstrate that but for the plaintiff's age, the employment decision would have been different. The employer provided documentation promising the new CEO a free hand in replacing executives as part of his charge to manage the company. Despite these directions, the evidence also showed that the plaintiff attempted to retain a wide range of responsibilities promised to the CEO.

Clear documentation of legitimate, non-discriminatory reasons for the employment decision defeated the discrimination claim despite the alleged remark regarding the plaintiff's age. This case demonstrates the critical need for employers to be able to relate the business reasons behind decisions affecting employees in subsequent legal disputes.