Mission Impossible: 11th Circuit “Clarifies” Comparator Standard

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The Eleventh Circuit recently tried to “clarify” when a comparator is “similarly situated” to other employees.

What does it mean for something or someone to be “similar”? That was the existential question recently confronted by the Eleventh Circuit Court of Appeals in a race discrimination case: Lewis v. City of Union City, No. 15-11362, 2019 WL 1285058 (11th Cir. Mar. 21, 2019.) In particular, the Court was concerned with comparators in discrimination cases.

In a typical discrimination case, an employee in a protected class (race, gender, disability, age) will claim that another employee, outside the protected class, was treated better. For example, a female employee who was terminated for tardiness will claim that a male employee was tardy but not fired. In legal jargon, the male employee is considered a “comparator.”

But, comparators need to be similar. A business can have legitimate reasons for excusing the tardiness of a high-level, salaried manager, but not a lower-level, hourly employee. I have discussed the importance of comparators in other discrimination cases Here and Here.  Courts can’t compare “apples and oranges.”  So, Lewis is an effort by the Eleventh Circuit to provide lower courts with a better analysis for reaching an “apples to apples” comparison.

The United States Supreme Court has previously held that comparators must be “similarly situated.”  But, the Eleventh Circuit, and other courts, have struggled with question of just how “similarly situated” a plaintiff and her comparators must be.  Different groups of Judges in the Eleventh Circuit have announced different standards to the point that the Lewis court concluded:  “It’s a mess.”

Therefore, the Court announced a new standard to be used in all cases going forward:  a plaintiff and her proffered comparators must be “similarly situated in all material respects.”  Great!  But, what does that mean?

At one point in the opinion, the Court suggests that “essential sameness” is a requirement.  Yet, the Court also states that the standard “must be worked out on a case-by-case basis.”  The Court also identifies four “sorts of similarities” that will underlie a valid comparison:

  1.  The compartor will have engaged in the same basic conduct (or misconduct) as the plaintiff.
  2. The comparator will have been subject to the same employment policy, guideline or rule as the plaintiff.
  3. The comparator will ordinarily (although not invariably) have been under the jurisdiction of the same supervisor as the plaintiff.
  4. The comparator will share the plaintiff’s employment or disciplinary status.

The Lewis Court concludes by stating that “a valid comparison will turn not on formal labels, but rather on substantive likenesses.”  Moreover, “comparators must be sufficiently similar, in an objective sense, that they ‘cannot be reasonably distinguished.'”

So, what does this mean for Alabama employers?  Generally, I think this standard is good for employers.  By using phrases like “substantial sameness” and “substantive likenesses,” the Court appears to be signalling that the standard for similarity is high.  Nevertheless, the new standard is not effective in helping employers in determining “how high” the bar is.  I feel that, in many ways, we are left with Justice Potter Stewart’s famous saying:  “I know it when I see it.”  As a result, employers in Alabama and the rest of the Eleventh Circuit must simply do their best while the Eleventh Circuit continues to flesh-out the standard on a “case-by-case” basis.



Employees Suing For Discrimination Can’t Ignore Bad Comparators


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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.