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What happens when I allege a comparator within my same protected class in a Title VII lawsuit?

Introduction

Title VII of the Civil Rights Act of 1964 (“Title VII”) protects against discrimination based on race, color, religion, sex, and national origin. There are many different bases for bringing a claim under Title VII, including but not limited to, disparate terms and conditions of employment based on a protected characteristic, discriminatory termination, discriminatory failure to promote, discriminatory failure to hire, and retaliation. Employees are also permitted to bring multiple claims under Title VII based on different protected characteristics.

Discrimination claims require that an employee prove discriminatory motive on the part of the Defendant. Discriminatory motive can be proven through comparator evidence, that is naming a similarly situated individual(s)—outside of the employee’s protected classification—who was treated more favorably than the employee; discriminatory comments; discriminatory actions; and/or discriminatorily applying company policy and procedure. Typically, to successfully move forward with a Title VII discrimination claim using comparator evidence, the named individuals must be outside of the employee’s protected classification. However, sometimes the employee may bring two different claims under Title VII, such as race and gender, wherein some of the comparators appear to conflict with Plaintiff’s protected characteristic for another claim. In the Northern District of Alabama, this is not an issue at the pleading stage of litigation.

Pleading Inconsistent Comparators

Courts within the Northern District of Alabama permit plaintiffs to move forward with multiple claims in litigation, beyond the pleading stage, even when some of the comparators for one claim fall into the plaintiff’s protected classification for another claim. For example, if a plaintiff sets forth race and gender discrimination claims, and names both women and men as comparators, there appears to be an inconsistency for the gender discrimination claim. However, at the pleading stage, the plaintiff is permitted to move forward in litigation with both claims, despite the seeming inconsistency. This is permitted for a few reasons. First, under Federal Rule of Civil Procedure 8(d)(3), plaintiffs are permitted to plead inconsistent claims. Second, at the pleading stage, there is no evidentiary requirement, meaning the plaintiff need only put the defendant on notice of his or her claims. Third, without the benefit of discovery, there is no way to know the true discriminatory motive of the defendant. Until discovery is conducted and the alleged facts are fleshed out, the plaintiff is permitted to plead multiple claims, no matter if they are inconsistent.

If you feel your rights under Title VII have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Wrady Michel & King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you.