Employees Suing For Discrimination Can’t Ignore Bad Comparators

comparators discrimination Alabama Employment Law
Employees suing for discrimination can’t focus solely on comparator employees who were treated better. Instead, if comparator employees were also treated worse, there may be no viable claim for discrimination

United States District Court Judge Madeline Haikala recently dismissed a discrimination claim because the employee failed to show that the majority of comparators (i.e., similarly situated co-employees outside the protected class) were treated better than him.  See Burton v. Miles College, No. 2:14-CV-02471-MHH, 2017 WL 6336327 (N.D. Ala. Dec. 12, 2017).  Abraham Burton was employed by Miles College as an assistant dormitory director.  He sued the college for gender discrimination and age discrimination, and claimed that Miles paid women and younger employees more than him.

In most employment discrimination cases, employees like Mr. Burton try to use circumstantial evidence to prove discrimination.  Employees can sometimes succeed in a circumstantial case by offering evidence of “comparators” — similarly situated individuals of the opposite sex or similarly situated, substantially younger employees.  Comparators must be “similarly situated in all relevant respects.”  That is, they must work in the same position with the same experience and same supervisors.  Usually, if an employee like Mr. Burton identified a comparator who was paid more favorably, a judge would find an inference that the difference in treatment was the result of discrimination.

Mr. Burton pointed to two comparators — a younger assistant dormitory director and a female assistant dormitory director — who were paid more than him.  But, Judge Haikala refused to rely solely upon those comparators when determining whether discrimination occurred.  Instead, she relied upon a case from the Third Circuit Court of Appeals to hold that “[a] plaintiff may not pick from a valid set of comparators only those who allegedly were treated more favorably, ‘and completely ignore a significant group of comparators who were treated equally or less favorably than [he].'”  Burton, 2017 WL 6336327  at *3 (quoting Simpson v. Kay Jewelers, 142 F.3d 639, 646-47 (3d Cir. 1998).

In this case, Miles College paid one female assistant dormitory director better than Mr. Burton, but paid five other female assistant dormitory directors worse than Mr. Burton.  Similarly, the college paid one younger assistant dormitory director better than Mr. Buton, but also paid three substantially younger assistant dormitory directors better.  Thus, Judge Haikala concluded:  “These circumstances do not give rise to an inference of discrimination ….”

It will be interesting to see if other judges in Alabama adopt Judge Haikala’s rationale.  For the time being, however, she has provided employers with an additional way to fight employment discrimination claims.