Are these two employees comparable? Today, you be the judge to help decide this discrimination case.

A white man who worked as a utility water meter reader sued his employer for racial discrimination after he was fired for inaccurately reporting homeowners’ water meters.

In support of his claims, the plaintiff compared himself to a black coworker who was not fired even though he started work late, left early, and took unauthorized hours-long breaks during his shift.

At summary judgment, the district court ruled against the plaintiff because it concluded that the conduct at issue was so different that the men were not similarly situated, leaving the plaintiff unable to establish a prima facie case of disparate punishment.

How can you tell if employees are similarly situated?

1. They have the same supervisor,
2. The same standards of employment, and
3. They engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer’s treatment of them.

I want you to assume that the white plaintiff and his black coworker satisfy the first two criteria.

The question I have for you, my honorary judges, is whether the two men’s conduct was of comparable seriousness, i.e., did they engage in similar—not identical—conduct to qualify as “similarly situated?”

Take this anonymous poll today, and tomorrow, I’ll tell you whether three appellate court judges affirmed or reversed the lower court’s ruling in a 2-1 decision.

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If you missed Friday’s edition of The Employer Handbook Zoom Office Happy Hour: “Leave Management Hacks and Cheat Codes” with my guests Daris Freeman and Jeff Nowak, you can check out the replay on The Employer Handbook YouTube Channel. While you are there, consider subscribing to the channel (and clicking the bell notification icon). That way, you’ll never miss another video that I post.

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Also, if you really geek out on leave management, click here to sign up for Jeff’s free webinar, “Employee Fitness for Duty Exams: Navigating the FMLA and ADA Traps to Keep Employers Compliant,” on Wednesday, December 14, 2022 (12:00 – 1:15 p.m. central time).