Monday, April 1, 2019

11th Circuit on "similarly situated" comparators

In my experience, very few discrimination cases include "direct evidence" - the proverbial smoking gun. Instead, plaintiffs rely on circumstantial evidence to imply discriminatory intent. The most common way to do this is for the plaintiff to point to other employees (outside of the plaintiff's protected class) who did not receive the same adverse employment action.

Not official use. 
To draw a valid comparison, the plaintiff and the comparators must be "similarly situated." That just makes sense. A different supervisor treating a different person with a different job under different circumstances differently is hardly evidence of discriminatory intent on behalf of the employer. The 11th Circuit's opinion in Lewis v. City of Union City answers the question: just how similarly situated do they have to be?

The majority opinion of the en banc panel concluded that comparators must be "similarly situated in all material respects." The Court describes this standard as the "sweet spot" between the too-lenient "comparison that is not useless" standard and the too strict "nearly identical" standard.

Although the analysis will depend on the circumstances of each case, the comparator will "ordinarily"

  • "have engaged in the same basic conduct";
  • "been subject to the same employment policy, guideline, or rule";
  • "have been under the jurisdiction of the same supervisor";
  • "share the plaintiff's employment or disciplinary history."
To wrap-up, "comparators must be sufficiently similar, in an objective sense, that they cannot reasonably be distinguished." (internal quotations omitted). It is important to note that the test varies (in some cases fairly significantly) from circuit to circuit. 

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