In employment discrimination cases, employees often seek to prove their claims by presenting indirect evidence of discrimination. Employees will seek to present evidence that they were treated differently than similarly situated employees outside of their protected class. On March 21, 2019, the Eleventh Circuit adopted a new test for analyzing these “comparators” by issuing its decision in Lewis v. City of Union City, Ga.. In doing so, the Court rejected its previous standards for analyzing comparators. Before Lewis, courts in the Eleventh Circuit evaluated “similarly situated” comparators under either the “nearly identical” or “same or similar” standard, and sometimes even used both standards simultaneously. The fact that two standards had emerged, and at times, were even used together, without any clear guidance on their proper use, caused the Court to call the entire situation “a mess.” Accordingly, in an effort to clean up and clarify the proper standard for comparator evidence, a full panel of the Court took on Lewis so that it could address whether “similarly situated” should be interpreted as “same or similar,” “nearly identical,” or something else. Ultimately, the Court decided to depart from its previous standards, and went with something else. Now, in order to prove intentional discrimination by indirect evidence, a plaintiff must show that employees “similarly situated in all material aspects” received preferential treatment. The Court also reiterated that this burden remains with the plaintiff as part of plaintiff’s prima facie case. So, what was the case about, and what does it mean for employers?
After the announcement of a new policy requiring all police officers to carry Tasers and receive a five-second shock, Jacqueline Lewis, an African-American detective with the Union City Police Department in Union City, Georgia, was scheduled to receive such training. She had also been scheduled to receive pepper spray training. But, before receiving either of these, Ms. Lewis submitted a doctor’s note that, due to a heart condition, it would not be safe to use a Taser or pepper spray on her. Based on the note, the Police Chief found Ms. Lewis to be unable to perform her essential job functions and placed her on unpaid administrative leave until she could receive medical clearance. When Ms. Lewis exhausted her accrued leave and did not complete the necessary FMLA paperwork though, she was fired for taking unapproved leave. Ms. Lewis subsequently sued the City and the Police Chief for race, gender, and disability discrimination.
As with almost all claims of discrimination, Ms. Lewis sought to prove her case through the use of indirect evidence under the McDonnell Douglas burden-shifting framework. Under this framework, a plaintiff must show that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gave rise to an inference of discrimination. As we mentioned above, in order to prove that an unfavorable action gave rise to an inference of discrimination, a plaintiff must often present evidence that she was treated differently than similarly situated employees outside of her protected class. Accordingly, during litigation, in response to the City’s motion for summary judgment, Ms. Lewis presented indirect evidence of discrimination, identifying two white male detectives who failed physical fitness tests, but received more time to correct their failures. She alleged that, under McDonnell Douglas, these two men were “similarly situated” to her, but received preferential treatment based on their race, gender, or disability.
The U.S. District Court for the Northern District of Georgia rejected this comparison and held that the proffered comparators did not qualify as “similarly situated” under the “nearly identical” or the “same or similar” definitions previously articulated by the Eleventh Circuit. On appeal, a three-judge panel of the Eleventh Circuit reversed, holding in part that the two men were valid comparators. But, the Eleventh Circuit vacated the panel’s decision and took the case en banc to clarify the proper comparator standard in cases alleging intentional discrimination.
In assessing the argument, the Eleventh Circuit announced that it would be analyzing the issue under a new test, calling its previous standards too strict or incoherent. It reasoned that it would be using the “similarly situated in all material aspects” standard, and gave some guidance on its meaning. Under this new standard, the Court said:
- Comparators do not need to have precisely the same title;
- Minor differences in job function will not disqualify a would-be comparator;
- Comparators should have been engaged in the same basic conduct (or misconduct) as the plaintiff;
- Comparators should have been subject to the same employment policy, guideline, or rule as the plaintiff;
- Comparators ordinarily (although not invariably) should be under the jurisdiction of the same supervisor as the plaintiff; and
- Comparators should share the plaintiff’s employment or disciplinary history.
Applying this standard to the comparators offered by Ms. Lewis, the Court ultimately ruled that the two white male officers were not similarly situated “in all material respects” because they were placed on administrative leave pursuant to different personnel policies and for different medical conditions.
Although the Court ruled in favor of the employer on the issue of comparators in Lewis, employers should still proceed with caution as they begin to test the limits of the Court’s new standard because the standard is lower than the “nearly identical” standard applied previously. This means greater likelihood of success for plaintiffs, and greater legal risk for employers. The Eleventh Circuit now joins the Second, Eighth, and Ninth circuits with its new, more flexible standard. The Seventh Circuit also has a flexible standard, accepting comparators unless differences make a comparison “effectively useless.” Accordingly, employers operating in locations under these circuits should be careful. Even employers outside these circuits should keep their eyes out for developments as movement by one circuit can sometimes trigger movement by others. In the meantime, we recommend employers take all necessary precautions to prevent and protect against such legal risk.