How does one of your employees actually prove discrimination in court?

Oh, I thought that you knew. I was just asking for a friend.

Alright, fine. I’ve got a little something to say about this.

The Eleventh Circuit had a LOT to say about this.

So, let’s start with this federal appellate court decision from last week. If you click the hyperlink and then print it, 100 pages will spit out of your printer.


Let’s see what I can do to simplify things.

This case involved a woman who claimed that her employer discriminated against her based on her race and her gender. The plaintiff did not allege sexual harassment or a hostile work environment. Instead, she claimed that her employer treated individuals outside of her protected classes (African American, Female) better than it did her. So, she asserted an intentional-discrimination claim under a bunch of federal anti-discrimination statutes; namely, Title VII of the Civil Rights Act of 1964, the Equal Protection Clause, and 42 U.S.C. § 1981.

The Eleventh Circuit noted that a plaintiff who brings intentional-discrimination claims has several options available to her:

[O]ne of which is by navigating the now-familiar three-part burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green. Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by proving, among other things, that she was treated differently from another “similarly situated” individual—in court-speak, a “comparator.” … The obvious question: Just how “similarly situated” must a plaintiff and her comparator(s) be?

Under the McDonnell Douglas test, a plaintiff must initially establish both that she was similarly situated to a comparator — more on this in a bit — as well as three other elements; namely: (1) she is a member of a protected class; (2) she was qualified for the job in question; and (3) she suffered an adverse employment action.

But, we’re going to focus on the “similarly situated” element; otherwise, we’ll be here forever. And you have much to get to on a Monday. Like talking with your co-workers about last night’s episode of The Walking Dead.


Similarly situated in all material respects.

So, how does an employee establish that she is similarly situated to a comparator?

According to the Eleventh Circuit, a plaintiff must show that she and her comparators are “similarly situated in all material respects.”

What does this mean? Well, it doesn’t mean “same.” That’s too strict. It doesn’t mean “nearly-identical” either. But, it doesn’t mean “similar” either. That’s both too vague and lenient.

The Seventh Circuit has adopted a “flexible, common-sense” standard where one can satisfy the “similarly situated” requirement if any differences between the plaintiff and the comparator are not “so significant that they render the comparison effectively useless.” But, the Eleventh Circuit didn’t like that either.

What factors suggest similarly situated?

The Eleventh Circuit identified a few examples:

  • plaintiff and comparator “have engaged in the same basic conduct (or misconduct).”
  • plaintiff and comparator “have been subject to the same employment policy, guideline.”
  • plaintiff and comparator share the same supervisor.
  • plaintiff and comparator have the same disciplinary history.

How does any of this impact your business?

Not much, really. Especially if you don’t operate within the Eleventh Circuit; namely, Alabama, Florida, or Georgia.

But, even if you do conduct business in the southeast, the plaintiff’s burden of proof in an intentional-discrimination case isn’t going to affect the way you conduct business. Some dissenting judges criticized the majority’s “similarly situated in all material respects” standard as “drop[ping] an anvil on the employer’s side of the balance.”

No employer should leverage this decision to scheme ways to discriminate intentionally.

Now, I need your help.

By the time you read this today, I’ll likely be on a flight to New Orleans for the FisherBroyles annual retreat.

Please email me and hook a brother up:

  • One must-hit meal.
  • One must try beverage (adult or otherwise), as long as it’s not a Hurricane or a Hand Grenade.
  • One must-do activity.

Thank you.



“Doing What’s Right – Not Just What’s Legal”
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