On March 21, 2019, the full en banc U.S. Court of Appeals for the Eleventh Circuit clarified that in order to establish a prima facie case of workplace discrimination through alleged preferential treatment of a comparator outside the plaintiff’s protected class, a plaintiff must show that the alleged comparator is “similarly situated in all material respects.” The opinion clarifies the “similarly situated” standard in discrimination cases and may assist employers in obtaining summary judgment, particularly in cases in courts located in the Eleventh Circuit, which includes Florida, Georgia, and Alabama.
In Lewis v. Union City, Georgia (Case No. 15-11362), an African-American woman sued her former employer for race and gender discrimination. In support of her claim, she identified two white men who she alleged were treated more favorably. The district court granted summary judgment to the employer, concluding that the two white men were not proper comparators, but a panel of the Eleventh Circuit reversed.
The full en banc Eleventh Circuit then took up the case to clarify the proper standard for comparator evidence in discrimination cases. The Court stated that “[t]o date, our attempts to answer that question have only sown confusion,” explaining that at times it embraced a “nearly identical” standard and at others rejected this standard.
As an initial matter, the Court held that a meaningful comparator analysis must be conducted at the prima facie stage of McDonnell Douglas’s burden-shifting framework and should not be moved to the pretext stage as plaintiff argued. The Court emphasized that the prima facie stage requires the plaintiff to prove an inference of discrimination. Because discrimination “consists of treating like cases differently,” the Court reasoned that “it is only by demonstrating that her employer has treated ‘like’ employees ‘differently’—i.e., through an assessment of comparators—that a plaintiff can supply the missing link and provide a valid basis for inferring unlawful discrimination.”
The Court then clarified the proper test for evaluating comparator evidence: whether the alleged comparators are “similarly situated in all material respects.” The Court emphasized that this standard “leaves employers the necessary breathing space to make appropriate business judgments” and “accord different treatment to employees who are differently situated in ‘material respects’—e.g., who engaged in different conduct, who were subject to different policies, or who have different work histories.” And, it allows courts to grant “summary judgment in appropriate cases―namely, where the comparators are simply too dissimilar to permit a valid inference that invidious discrimination is afoot.” Although the Court explained that the “all material respects” standard will have to be determined on a case-by-case basis, it provided some helpful “guideposts” as follows: minor differences in job title or job function will not ordinarily result in a determination that an alleged comparator is not similarly situated, but to be similarly situated, a comparator will typically have (1) engaged in the same basic conduct (or misconduct), (2) been subject to the same employment policy, (3) reported to the same supervisor, and (4) the same employment or disciplinary history.
The Lewis opinion provides employers with more certainty about which employees could potentially be comparators when making employment decisions and also provides clarity to courts when making similar determinations in the context of litigation.