Editor’s note: The Back to Basics column serves as an accessible way to understand employment law. If you’re new to HR (or just need a little refresher), follow along as the HR Dive team speaks with legal experts, peruses federal guidance and lays out the basics. Feel free to send tips, questions and feedback to [email protected].
A hypothetical lawsuit alleges sex-based discrimination in violation of Title VII of the 1964 Civil Rights Act. The plaintiff, a zookeeper, claims that she was subjected to disparate impact when her employer penalized her for being late to work, but did not discipline “similarly situated” male employees in the same manner.
Peruse a workplace discrimination court document and you’re likely to see that phrase — similarly situated — pop up. The term is a throwback to the U.S. Supreme Court’s 1973 decision in McDonnell Douglas Corp. v. Green, which outlined the bar Title VII plaintiffs must meet in order to support a claim that an employer’s application of facially neutral policies was pretext for discrimination.
But who, exactly, is a similarity situated comparator? And how similar must that comparator be to a given plaintiff?
At its most basic, the phrase refers to an employee whose circumstances are such that they are subjected to the same standards, policies or rules, and have engaged in substantially the same conduct as the plaintiff, said Brandon Dixon, partner at Seyfarth Shaw. The concept helps courts to determine whether one individual received more favorable treatment or a different outcome than another based on a protected characteristic.
Unhelpfully, federal courts vary insofar as the elements they consider in this analysis. This is a point acknowledged by the U.S. Department of Justice in a 2009 report on the McDonnell Douglas standard. Generally speaking, the two comparators must hold similar jobs and display similar conduct, DOJ said, but courts also may consider factors such as:
- Whether the plaintiff and comparator have the same supervisor.
- Whether the plaintiff and comparator have comparable work histories.
- Whether any differentiating or mitigating circumstances distinguishes one employee’s conduct from that of the other.
Some courts, like the 11th U.S. Circuit Court of Appeals, which has jurisdiction over appellate cases in Alabama, Florida and Georgia, drill further. That court has said employees must be similarly situated “in all material respects.”
The 11th Circuit stated that this does not mean that a plaintiff and a comparator are the same in all ways, like having the same job title or function, but that they do share other characteristics. Per the court, this may include:
- Engaging in the same basic conduct.
- Being subject to the same employment policy, guidance or rule.
- Being under the jurisdiction of the same supervisor, though “not invariably.”
- Sharing the same employment or disciplinary history.
The same court stressed that this determination must be made on a case-by-case basis, and employers should keep that in mind as they wrap their heads around the concept, said Brett Owens, partner at Fisher Phillips.
“There’s really no hard and fast rule,” Owens said. He added that, because the analysis is specific to the jurisdiction of the court, it’s important for employers to identify the extent of their operations and what that may mean in the context of discrimination claims.
Generally, however, courts have gotten less strict in their definition of similarity over time, according to Dixon. That means employers need to do more work when investigating discrimination claims to determine how employees have been disciplined for alleged conduct regardless of elements such as their respective levels within the organization.
“Go in eyes wide open and look more broadly, within reason, at your employee base, and say, ‘What other individuals have done the same behavior, and how did we treat them?’” Dixon said. “I think that can make the case a little bit easier.”
Employers also will not necessarily win or lose a case on the basis of the similarly situated prong alone, he added. While establishing that a comparator exists can get a plaintiff past the summary judgment phase, an employer may still prevail if it has sufficient documentation and a nondiscriminatory explanation for a challenged decision.
“Your strongest defense is a strong investigation,” Dixon said. “Documentation is key.”
Those records can take several forms, per Owens. If an employee is placed on a performance improvement plan, for instance, the employer can create an electronic record of the supervisor’s intention to place the employee on the plan.
A contemporaneous record may include any calendar invitations to relevant meetings and any other communications — be they emails, texts, phone calls or other mediums — that disclose a possible violation or performance concern and the employer’s disciplinary actions that flowed from it.
It’s equally important, Owens continued, to capture why the conduct is important for the employer to address in the first place. For example, if the employee is a manager, the employer could cite that it places a degree of trust in managers to execute the company’s mission. If an employee is to be disciplined for lateness, the company can articulate why its attendance policy is important in the context of providing quality customer service.
These elements can serve as an employer’s “armor” in defending against potential claims, Owens said.
