Now, here’s how you REALLY compare two employees in a discrimination lawsuit


During Thanksgiving week, I blogged about a Seventh Circuit decision and what makes a plaintiff alleging discrimination “similarly situated” to another employee outside of the plaintiff’s protected class whom the employer allegedly treated more favorably.

The Seventh Circuit concluded that a white man who was fired for effectively stealing from his employer was comparable to a black man with attendance issues. I told folks outside the Seventh Circuit to disregard this decision because I thought they got it wrong. But I never gave you any examples of cases upon which to rely instead. Well, let’s fix that today.

Last night, I read two decisions. One is from a federal court in Alabama, and the other is from the Third Circuit Court of Appeals. Both cases involve claims of discrimination.

The Alabama case involves a plant manager the employer fired because she mistreated co-employees and subordinates. The employer in the Third Circuit case fired the plaintiff after he slept on the job…twice. (They specifically warned him after he slept on the job the first time that the second infraction would result in his termination.)

Both plaintiffs claimed their respective employers treated comparable employees outside of their respective classes better.

To test the plaintiffs’ theory, we need a, err, test.

Typically, a similarly situated comparator will check four boxes:

  1. they engaged same essential conduct (or misconduct) as the plaintiff,
  2. the same work rules governed their employment,
  3. they usually share the same supervisor, and
  4. they have a similar employment/disciplinary history as the plaintiff.

The two employees must be pretty similar (or the same) in all material respects.

Let’s see how the courts applied this test in the two cases.

The plaintiff in the Third Circuit claimed race discrimination. He is black. So, you’d think he would provide testimony, documents, or other evidence about white employees sleeping twice on the job and not getting fired, right?

Well, no.

He provided no evidence of a similarly situated Caucasian employee who was (1) previously terminated and reinstated for sleeping on the job and warned that the employer would automatically terminate him if they caught him sleeping on the job again, (2) then purportedly caught sleeping on the job after the warning, and (3) not been recommended for termination the same supervisor.

In Alabama, the plaintiff fared even worse.

She claimed sex discrimination and compared herself to two men. But she did not offer any evidence regarding their employment or disciplinary history. Instead, she offered only the conclusory allegation that they “had the same disciplinary history” as the plaintiff. Conversely, the defendant provided evidence that neither man had the same problems dealing with co-employees or subordinates as the plaintiff. As such, the plaintiff failed to establish her prima facie case of sex discrimination because she could not establish that her comparators were “similarly situated in all material respects.”

Here’s the takeaway. In a perfect world, you treat people fairly, apply your rules evenly, and discipline them accordingly.

Sometimes, differences and deviations do arise among employees in different protected classes. When those employees aren’t “similarly situated in all material respects,” there’s far less risk of a discrimination claim based on disparate treatment.

If the employees are close enough — they don’t have to be identical in all other respects —  the employer hasn’t discriminated as a matter of law if it has a legitimate, nondiscriminatory reason for its action(s). The ultimate burden falls on the eventual plaintiff to prove that whatever the defendant did was a pretext for discrimination.

On an unrelated note, I’ll leave you with the wildest medically-supported accommodation request I’ve ever seen.

Have a nice weekend.

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