When employees say, “You helped him when he was injured but refused to help me,” it sounds like discrimination. It also sounds like a failure-to-accommodate dispute. A recent Ninth Circuit decision shows why that framing matters, and why getting it wrong can sink the case before it ever reaches a jury.
TL;DR: Female employees claimed that their employer refused to accommodate their mobility limitations while informally accommodating injured male employees. The Ninth Circuit affirmed summary judgment for the employer, holding that the plaintiffs failed to establish a prima facie case of sex discrimination because they could not identify similarly situated male comparators with materially similar jobs and duties who were treated more favorably. Even assuming that an alleged refusal to accommodate could qualify as an adverse action under Title VII, comparator proof still did the heavy lifting.
📄 Read the Ninth Circuit’s decision
The plaintiffs’ theory
The plaintiffs sued their employer under Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act. Their claim was not framed as a disability accommodation case under the Americans with Disabilities Act. Instead, they alleged sex discrimination.
According to the plaintiffs, the employer informally accommodated male employees with mobility-related injuries but refused to provide similar flexibility to women. That differential treatment, they argued, amounted to unlawful sex bias.
Why the court did not bite
The Ninth Circuit analyzed the claims under the McDonnell Douglas framework. To survive summary judgment, the plaintiffs had to establish a prima facie case, including that similarly situated male employees were treated more favorably.
The court was careful on the “adverse action” question. Under California law, an employer’s refusal to accommodate is not a cognizable adverse employment action in a sex discrimination case. As for Title VII, the court assumed without deciding that an alleged refusal to accommodate could qualify as an adverse action.
That assumption did not save the claims.
The comparator problem
The case turned on comparators. To be similarly situated, employees must be similar in all material respects. That means similar jobs, similar duties, and similar conduct.
The plaintiffs did not get there. Their allegations about male comparators were thin and lacked specifics about job responsibilities, performance, or whether the men shared a common core of tasks with the plaintiffs. General assertions that male employees received flexibility were not enough to create a triable issue of fact.
Without evidence of truly comparable male employees who were treated better, the sex discrimination claims failed at step one.
The employer takeaway
Even when employees point to physical limitations, a sex discrimination claim still turns on how flexibility was granted to comparable coworkers.
Courts will demand detail. Vague references to flexibility or informal accommodations will not substitute for apples-to-apples comparator evidence.
The bottom line: perception and fairness concerns may drive complaints, but discrimination law still turns on proof. Without real comparators, claims like these never get off the ground.