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Eleventh Circuit Establishes New Standard for Comparators


In a very recent opinion from the Eleventh Circuit, a new standard was articulated for comparator evidence. When employees need to prove that they were treated less favorably than someone outside of their protected class (a comparator), the comparator must be appropriate in order to establish the proof needed.

The Need for Comparator Evidence in Discrimination Cases

Comparator evidence is very often needed in employment discrimination cases because of the need to rely on circumstantial evidence. Direct evidence is so rare that employees must resort to creating an inference of discrimination. As one court described it, employers are “unlikely to leave a ‘smoking gun’ attesting to a discriminatory intent.” Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). “A plaintiff may raise such an inference by showing that the employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside his protected group.” Id.

The “Similarly Situated” Standard Has Been Clarified

Determining precisely what the term “similarly situated” means has always been tricky. In fact, different courts have imposed different requirements. For example, in cases involving disciplinary issues, some courts have required that the alleged misconduct be “nearly identical” for the comparators to be appropriate. Courts require that comparators have the same supervisors, the same job duties, etc. However, without consistency, both employees and employers struggle to understand the type of proof required.

Eleventh Circuit Requires Comparators to be “Similarly Situated in all Material Respects”

The Eleventh Circuit released its opinion on March 21, 2019, which served to clarify the standard for establishing a prima face case of employment discrimination using comparator evidence. Based on this new opinion, a plaintiff must show that the alleged comparator is “similarly situated in all material respects.” This new standard applies to cases in courts located in the Eleventh Circuit, which includes Alabama, Florida, and Georgia.

The Court found that it was time to clarify the appropriate standard because, “[t]o date, our attempts to answer that question have only sown confusion,” explaining that in some cases it embraced the “nearly identical” standard but in others, it rejected this standard.

What Does the New Standard mean?

The Eleventh Circuit highlighted that the new 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.”

Although the “all material respects” standard must be analyzed on a case-by-case basis, it will still provide useful as a “guidepost.” Inconsequential differences in job function or title typically do not mean the comparators are not similarly situated. However, being similarly situated typically means they are (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.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced attorneys at Michel | King. You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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