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How Do You Like Them Apples? Eleventh Circuit Slices Up New “Comparator” Standard for Intentional Discrimination Cases

Posted on: March 26th, 2019

By: Tim Boughey

Last week, in Lewis v. City of Union City, Ga. et al., No. 15-11362 (11th Cir. March 21, 2019) (en banc), the Eleventh Circuit issued an important decision addressing the proper comparator analysis applied to circumstantial claims of intentional discrimination (whether under Title VII, Equal Protection, or Section 1981).  At the core of every discrimination case, the employee must produce evidence the employer acted with an impermissible, discriminatory motive or else suffer the dismissal of their case at summary judgment. In most discrimination cases, the employee lacks direct evidence of discrimination – such as clearly sexist, racist, or similarly discriminatory statements or actions by the employer in connection with an employment decision. Without direct evidence, the employee must instead come forth with circumstantial evidence supporting an inference of intentional discrimination. In most cases, the employee proceeds down the familiar McDonnell Douglas framework and attempts to establish that the employer treated a so-called “similarly situated” employee outside of the employee’s protected class more favorably (in lawyer speak a “comparator”).

Over the years, the Eleventh Circuit made efforts to define “similarly situated”, and by its own admission, created something of a “hash” of the concept. In some cases, the Eleventh Circuit defined “similarly situated” to mean “same or similar” and in others as “nearly identical.” In more colloquial terms, the Eleventh Circuit summarized the “similarly situated” concept as one that prevents courts from second-guessing an employer’s reasonable decisions and confusing “apples with oranges.” Faced with the issue of reconciling differing and nebulous definitions, the Eleventh Circuit did some house cleaning Thursday and held “similarly situated” means “similar in all material respects.” In addition, the Eleventh Circuit held courts must apply this standard on the front end of the McDonnell Douglas analysis (commonly referred to as the prima facie stage) before an employer must articulate its legitimate, non-discriminatory reason(s) for making an employment decision.

With the spirit of providing employers “the necessary breathing space to make business judgments,” the Eleventh Circuit provided some guide posts for assessing whether or not an alleged comparator is “similar in all material respects.” Fleshing out the concept, the Eleventh Circuit indicated that a “similarly situated” employee is someone who, when compared to the employee bringing a discrimination claim, (1) engaged in the same basic conduct (or misconduct); (2) is subjected to the same employment policy, guideline, or rule; (3) reports to the same supervisor; and (4) shares the same employment or disciplinary history. The Eleventh Circuit then applied these standards to Lewis’ claims of discrimination and found she flunked the test because the employer applied a different employment policy (implemented two years after her termination) to her two alleged comparators.

This new “similar in all material respects” standard is most important for Human Resources professionals, supervisors, and employment counsel to public and private sector employers on the front lines of cases involving disciplinary action. In this regard, employers should look to past disciplinary decisions under the same work rule and supervisor as well as disciplinary history before making the call to toss a rotten apple from its workforce.

If you have any questions or would like more information, please contact Tim Boughey at [email protected].

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