Most employers are aware that to meet the burden of establishing a discrimination claim under the indirect method (i.e., without “smoking gun” evidence of discriminatory intent), an employee must offer evidence that similarly situated individuals outside her protected class were treated more favorably. While that principle is well established, cases can turn on the issue of who qualifies as a similarly situated comparator. In a recent case, the U.S. Seventh Circuit Court of Appeals provided additional guidance on the standard an employee must meet to establish a coworker as similarly situated.
Mastering HR Report: Discrimination
Facts
A mail-processing clerk was terminated after the U.S. Postal Service learned she had told her psychiatrist that she had thoughts of killing her supervisor (i.e., “going postal”). As a result, the employer believed she posed a threat to her fellow employees. The clerk sued, alleging her termination was based on her race (black) and sex (female) and was in retaliation for her previous complaints about discrimination.
To meet her burden under the indirect method of proof, the clerk presented evidence that two white male employees received a one-week suspension after reportedly threatening a coworker at knifepoint. The district court granted the employer’s request for dismissal of the case before trial, finding in part that the two comparators weren’t similarly situated to the clerk because they reported to a different supervisor and held different jobs. The clerk appealed to the Seventh Circuit.
Seventh Circuit’s decision
The Seventh Circuit took up the issue of the appropriate standard for analyzing whether comparators are similarly situated. The court stated that an employee usually must show that the comparator (1) dealt with the same supervisor, (2) was subject to the same standards, and (3) engaged in similar conduct without differentiating or mitigating circumstances. However, according to the court, that isn’t a “magic formula.”
With respect to whether the comparators had the same supervisor as the employee in this case, the court took a broader view. Although the clerk and her comparators reported to different supervisors, the respective disciplinary decisions were made by the same upper-level manager. The court held that because the decisionmaker was the same for both the clerk and her comparators, she had met the first part of her burden.
Next, the court held that the clerk and her comparators were subject to the same standards of conduct. Although the comparators were employed as mechanics, there was no evidence that the employer took their positions into account when determining the appropriate discipline, nor did the decisionmaker consider the clerk’s position when deciding to fire her.
The court analyzed whether the misconduct was similar enough to deem the clerk and her comparators similarly situated. The court noted that the critical question was whether the mechanics had engaged in conduct of comparable seriousness to the clerk. The employees’ conduct didn’t have to be identical. The court held that by directly threatening another employee with a knife in the workplace, the comparators had engaged in conduct that appeared at least as serious as the clerk’s threat against her supervisor, if not more so.
Finally, the court pointed out the tendency of courts to require closer and closer comparability between employees who file lawsuits and their comparators. According to the court, demanding that comparators be identical can turn the “similarly situated” burden into an “insurmountable hurdle.” The court found that the comparators in this case were similar enough to the clerk to permit a reasonable inference of discrimination. Therefore, she had presented evidence that similarly situated individuals outside her protected class were treated more favorably than she was. Coleman v. Donahoe, 2012 WL 32062 (7th Cir., January 6, 2012).
Bottom line
Employers are often advised to be consistent with past practice when determining how to discipline an employee for conduct or performance issues because any differentiation can lead to legal liability. Additionally, your decisions in a particular situation can set precedent for later decisions. Based on the ruling in this case, it’s important take a broad view when you deal with an employee’s misconduct, looking past coworkers in her department and employees who report to the same supervisor to determine whether anyone in your workforce has committed a similar infraction. You must also consider who the ultimate decisionmaker is, what his relationship to the offending employee is, and whether he has addressed similar situations in the past. Failure to do so can land you in court or before an administrative agency, facing charges of discrimination.