The End of the Long-Standing “Stray Remarks” Defense in Employment Lawsuits?

September 2, 2022

The Massachusetts Appeals Court issued a precedent altering decision partially centered on the long-standing defense in employment lawsuits known as the “stray remarks” doctrine. Formerly, when analyzing whether a statement could serve as direct evidence of discriminatory animus against an employer the court considered several factors. First, the court evaluated whether a decision maker was the speaker and whether the remark was related to the employment decision. Secondly, the courts looked at factors such as whether the comment was made before (having the ability to affect the decision) or after the employment decision, and the content of the remark. Previously, if those factors were in favor of the employer defendant, the courts have disregarded evidence of discriminatory remarks presented in a motion dealing with the sufficiency and admissibility of evidence, such as a motion for summary judgment.


Recently, in Adams v. Schneider Electric USA, the Appeals Court held that a motion for summary judgment awarded to Schneider Electric, in a lawsuit against a ten-year employee, released during a batch of reduction in force (RIF) layoffs should be reversed and was decided in err. In doing so, the judges held that there was sufficient evidence in the record for a reasonable jury to conclude that the RIF was proposed to carry out the larger corporate plan to target and replace its older work force. The Court determined that there was sufficient evidence of a high-level directive to replace Schneider’s older work force with younger talent “from which a jury could find that the RIF itself was tainted even if the person who selected the employees for the RIF [did so] neutrally.” As evidence of such, the Court pointed to an October 2015 e-mail in which a vice president told another employee that the company needed age diversity and younger talent. Contrary to the established Massachusetts precedent, the Court also pointed to comments made after the terminations and more importantly, not made by the Schneider employee who terminated Adams. This trampling of precedent did not go unnoticed by the Court, however. The judges reasoned that comments once considered stray and having no nexus to the employment decision, can “still be relevant to the employer’s contemporaneous thinking.” The judges continued by reasoning that any comments “made by those who have power to make employment decisions” can appropriately be considered as evidence of a larger discriminatory animus, and can no longer be dismissed as mere “stray remarks.” 


Essentially, the justices determined that even if the RIF was born from a non-discriminatory purpose, allegedly discriminatory remarks by higher-level managers can allow a jury to determine that the RIF was discriminatory from inception because of “the motives of the corporate managers,” not just the supervisor carrying out the employment decision, “should be treated as the motives for the decision.” In doing so, the majority had departed from the long-standing legal rule that “stray remarks” are insufficient to prove discriminatory bias by holding that the rule can never apply to a manager who has the power to make employment decisions. After this decision, statements from managers made after an employee is laid off could be used to persuade a jury that, although the direct actor harbored no discriminatory animus, they were “the innocent pawn of an undisclosed corporate strategy tainted by unlawful discriminatory animus.” 


This case will undoubtedly change the landscape for both plaintiff and defense employment counsel for the foreseeable future. Moving forward, it is essential that supervisory and management level decision makers are careful when discussing company-wide strategy that may impact workforce numbers. “Stray remarks,” that were once considered irrelevant and insufficient at the dispositive motion stage of litigation, are now considered to be signs of discriminatory strategy, and sufficient evidence for a jury to make a finding against an employer.  Employers, in addition to taking a second look at their own communications and language concerning RIF’s and the like, should be counseling their supervisors and managers to be mindful of their communications, even long after a RIF or other adverse employment action, because the comments made can be imputed on the employer as a whole.  Contacting your existing employment counsel at the first thoughts of laying off employees can help protect your business from legal liability and help you navigate the newly muddied water of reductions of force in Massachusetts.


For more information on this, or any other employment and labor law matter, please contact the attorneys at The Royal Law Firm LLP; (413) 586-2288. We know business matters!





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July 14, 2025
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Remote Workers and the WARN Act

July 9, 2025
Background: The e-commerce website Zulily liquidated in May 2023 and laid off its entire workforce by the end of 2023. While in-person workers at Zulily’s Seattle headquarters and fulfillment centers in Ohio and Nevada received 60 days’ notice or pay under the Worker Adjustment and Retraining Notification (WARN) Act, remote employees were not given any notice or pay. Four remote workers—two based in Washington and two based in Ohio—filed a class action lawsuit claiming that this was a violation of the WARN Act and state wage laws. The workers argued that because their roles were assigned to corporate offices or fulfillment centers, they should have been considered “affected employees” under the WARN Act when those sites closed. In a decision that could signal a significant shift in how the WARN Act applies to remote workers, the federal judge refused to dismiss the workers’ claims.  Key Legal Questions 1. Do Remote Workers Qualify for WARN Act Protections? The core of the dispute centers on whether remote workers can be considered part of a “single site of employment” that closed or experienced a mass layoff—terms that define whether the WARN Act’s notice requirements kick in. 2. Are WARN Act Damages Considered “Wages”? The Plaintiffs also brought state wage claims, arguing that the pay they would have received with proper WARN Act notice should be considered unpaid “wages” under Washington law and Ohio law. What the Court Decided: Judge Kymberly K. Evanson rejected the company’s motion to dismiss the case. Finding that Zulily’s argument that remote employees do not work at a single site with 50 or more workers and thus aren’t covered, was a factual question not suitable for early dismissal. Prior cases support the idea that even home-based employees may be “affected employees” if tied to a central worksite that shuts down. The court also found that if the WARN Act applies, then the Plaintiffs could plausibly claim that Zulily withheld “wages” owed under Washington and Ohio laws —opening the door to potential double damages and attorney fees. The Plaintiffs haven’t won their case; the court’s refusal to dismiss the claims allows them to move forward to discovery and potentially class certification. If they succeed, the case could set a precedent requiring companies to treat remote employees as part of larger employment sites for WARN Act purposes. With remote work here to stay, courts—and employers—will need to grapple with what "site of employment" really means in the 21st-century workforce. For employers, the message is clear: remote doesn't mean exempt. As the legal framework catches up with modern work arrangements, companies must tread carefully when making large-scale employment decisions. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.