13-D | ALLEGEDLY BIASED REMARKS IN THE EMPLOYMENT SETTING

Frequently, EEO litigation will involve the issue of whether allegedly biased remarks are admissible and probative. Whether the proffered evidence is admissible and/or probative will often turn on one or more questions, including but not limited to the following:

1) How clear (or ambiguous) is the statement?

2) How intense is the statement (does it tend to show bias, and if so, how strongly)?

3) Who uttered the statement?

4) Was the person uttering the statement in management, and did the person have direct or indirect power over the subject employment decision?

5) When was the statement uttered (and how much time has elapsed between the statement’s utterance and the subject employment decision)?

6) In what context was it uttered?

7) Did the statement refer to the plaintiff?

8) Was the statement an isolated incident or a stray remark? Alternatively, was the statement frequent in its nature and content?

9) Are there other indications of potential bias from the same person uttering the statement?

10) If the statement was not made by the decision maker, was it communicated to the decision maker?

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006