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As employment law attorneys, one of the situations we see a lot is that in which an employer is making offhand, isolated, and alleged discriminatory comments to an employee in the workplace. Often times, a potential new client comes to us and asks whether this situation constitutes employment discrimination under the laws of Ohio.

A look at the case law is instructive here. In one recent Ohio court of appeals case, the court held that “[s]tray remarks in the workplace when unrelated to the decision-making process, are insufficient to establish a prima facie case of discrimination, even when the statements are made by the decision-maker at issue.” Brewer v. Cleveland Bd. of Educ. In that case, the court listed four factors that courts should consider in determining whether a stray remark is actionable employment discrimination: (1) was the comment made by a decision-maker or an agent in the scope of employment; (2) was the comment related to the decision-making process; (3) was the comment an isolated remark; and (4) was the comment in proximity to the alleged discriminatory act? Under this framework, not only must the plaintiff allege a discriminatory act, e.g., the plaintiff was terminated or subjected to a similar adverse employment, but he or she must also demonstrate a relationship or connection between the remark(s) and the alleged discriminatory act.

Similarly, in another Ohio court case, the court stated that there must be a nexus between the alleged discriminatory comment and the prohibited act of discrimination. Frick v. Potash Corporation of Saskatchewan, Inc. Said the court: “Absent some causal connection or link between an employer’s discriminatory statements or conduct and a plaintiff-employee, there is no permissible inference that the employer was motivated by discriminatory animus to act against the plaintiff-employee. Thus, “derogatory co-worker comments do not substantiate a finding of employment discrimination, when such comments cannot be linked to the decisionmaker bringing forth the adverse action.” Id.

In 2010, an Ohio court held that a co-worker’s racially-insensitive and derogatory remark to the plaintiff did not rise to the level of employment discrimination. Hargrette v. RMI Titanium Co. Applying the four-factor test set forth in Brewer, the court reasoned that the co-worker was not the plaintiff’s supervisor and that the comment, while certainly offensive, was one, single, isolated incident.

Prevailing on an employment discrimination case grounded in one or two alleged discriminatory comments is not impossible, however. In 2007, the same Ohio court reached a different conclusion on slightly different facts. Birch v. Cuyahoga Cty. Probate Court. There, the plaintiff alleged that a judge made two discriminatory sex-related comments in the context of meeting with several female magistrates. After applying the four-factor test outlined in Brewer, the court held that there existed an issue of fact regarding the statements that were made and the immediate context in which they occurred. Of particular importance to the court was the fact that the comments were made by the individual who oversaw the hiring of magistrates and determined their salary, as well as the fact that the comments were made in the context of a meeting that was being held for the purpose of addressing the female magistrates’ complaints of wage disparities between themselves and the male magistrates.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.


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