For purposes of deciding claims of employment discrimination and retaliation, it is relevant to consider whether a “comparable non-protected person was treated better” than the plaintiff.¹ This is referred to as “comparator” evidence. If the plaintiff was treated less favorably than someone outside the protected class, it may be inferred that the defendant acted with improper motive.² This is true, however, only if the comparator was “similarly situated” to the plaintiff.³

What exactly does this mean? What if the comparator engaged in similar — but not identical — conduct? What if the comparator worked in a different department under a different supervisor? Does the test vary depending on the context in which the question is being raised (e.g., discovery versus summary judgment)?

This article provides an update on the law of comparator evidence in the U.S. Sixth Circuit Court of Appeals along with a few practice pointers.

McDONNELL DOUGLAS FRAMEWORK

Establishing a prima facia case of unlawful discrimination or retaliation requires the plaintiff to come forward with evidence suggesting discrimination or retaliation.⁴ If the plaintiff has presented such evidence, the court must determine whether the evidence as a whole is sufficient to support a finding of pretext.⁵ Comparator evidence is relevant at both the prima facia and pretext stage of analysis. It is also relevant at trial.

RELEVANT CONSIDERATIONS

In the context of disciplinary action, the Sixth Circuit has identified four criteria to be considered when determining whether a non-protected person is similarly situated to the plaintiff: (1) did the comparator report to the same supervisor; (2) was the comparator subject to the same standards of conduct; (3) did the comparator engage in the same conduct; and (4) were the circumstances such as to distinguish the comparator’s conduct from that of the plaintiff?⁶ Some judges refer to this as a three-factor test⁷ but the third factor actually consists of two parts: same conduct and differentiating or mitigating circumstances.⁸ Outside the disciplinary context, the test may vary and will often focus on job qualifications, job experience, and past performance as opposed to conduct.⁹

OUTSIDE THE PROTECTED GROUP

At the outset, it is important to remember that comparator evidence is only relevant to the extent that the comparator falls outside the protected group.¹⁰ In many cases this is easy to discern, like when the plaintiff is claiming race or gender discrimination. In other cases, it is less clear. If the plaintiff claims disability discrimination, for example, a proper comparator is someone who is not disabled or not similarly disabled either in terms of disability type or severity. If the plaintiff claims retaliation for having engaged in protected activity (e.g., requesting accommodation under the Americans with Disabilities Act or requesting time off pursuant to the Family and Medical Leave Act), a comparator is someone who has not engaged in such activity. If the plaintiff claims age discrimination, a comparator is someone “substantially younger.”¹¹ These subtle distinctions are often neglected by attorneys and judges when conducting comparator evidence analysis.

SAME SUPERVISOR TEST

The same supervisor test intends to adjust for the fact that different supervisors may have different standards of job performance and conduct which have nothing to do with protected status or protected activity.¹² Some supervisors are lenient in enforcing work rules; others are more rigid. Thus, for purposes of comparing apples to apples, courts generally limit the comparator group to those who work in the same department or job classification and report to the same immediate supervisor.¹³ This requirement, however, is flexible.¹⁴

SAME STANDARDS TEST

The same standards component receives little discussion in the reported decisions but makes good sense as an employer may have different standards for different groups of employees.¹⁵ For example, a managerial employee may be held to a higher standard of conduct than a non-managerial employee,¹⁶ an employee who has previously engaged in poor performance or misconduct may be afforded less leeway compared to an employee with no such history.¹⁷ An employer may have different rules for salaried versus hourly employees, professional versus non-professional workers, or union versus non-union.

An employer may be reluctant to discharge a union employee due to contractual restrictions, whereas an employer has the right to terminate a non-union employee at will. A managerial employee with “over 10 years of experience” may be held to a higher standard than a coworker with “less than two years of management experience.”¹⁸ Such differences must be considered when determining whether employees are similarly situated.

SAME CONDUCT TEST

Same conduct is generally defined as meaning “conduct of ‘comparable seriousness.’”¹⁹ The conduct need not be identical, but must be “similar in kind and severity.”²⁰ If the plaintiff has engaged in multiple acts of misconduct as opposed to a single act of misconduct, the plaintiff must show that the comparator(s) engaged in the same or a similar set of misconduct.²¹ The plaintiff cannot rely on their own “subjective belief” of whether their conduct equates with that of the comparator,²² nor can an employee establish comparable serious conduct by showing that only “some” of the comparator’s conduct was similar.²³ Employers have “discretion to assign different punishments to violations of different company policies.”²⁴

DIFFERENTIATING OR MITIGATING CIRCUMSTANCES

Even when employees have engaged in the same conduct, the employer may have legitimate non-discriminatory reasons for imposing different penalties. These reasons will vary from case to case and often overlap with circumstances considered for purposes of determining whether the comparator was subject to the same standards and whether the comparator engaged in the same conduct.²⁵ Employers are expected to treat similarly situated persons the same, but the “law does not require, nor could it ever realistically require, employers to treat all of their employees all of the time in all matters with absolute, antiseptic, hindsight equality.”²⁶

KNOWLEDGE

What if a comparator engages in the same conduct but the decision-maker is unaware of such conduct? Given that the purpose of comparator evidence is discerning the intent of the decision-maker, it would seem to follow that the decision-maker must have knowledge of the comparator’s behavior. On the other hand, knowledge was not mentioned by the Sixth Circuit when it formulated its four-part test. In Letner v. Wal-Mart Discount Department Store,²⁷ the court found that the company was entitled to summary judgment on the grounds that plaintiff failed to “allege or prove” that the decision-maker knew of other situations that had been treated differently.

NON-DISCIPLINARY DECISIONS

When making a hiring decision, the employer is necessarily comparing persons based on their relative qualifications including academic achievement, job skills, and prior job experience. The same is true when making layoffs and transfer or promotion decisions except that prior performance with the same employer is also a consideration.²⁸ The Mitchell factors are difficult to apply in these circumstances and are mostly irrelevant. Instead, courts have fo cused on whether “(1) the plaintiff was a plainly superior candidate, such that no reasonable employer would have chosen the latter applicant over the former, or (2) plaintiff was as qualified as if not better qualified than the successful applicant, and the record contains ‘other probative evidence of discrimination.’”²⁹

LITIGATIONS ISSUES

Comparator evidence is relevant at each stage of the litigation process, but the standard of proof varies. The standard of proof at the discovery stage is lower than at summary judgment and trial.³⁰ The standard of proof at the prima facie stage of the summary judgment analysis is lower than at the pretext stage.³¹ Comparator evidence will sometimes consist of statistics which may or may not be probative depending on whether the statistics “address all ‘relevant’ aspects of the [p]laintiff’s employment situation.”³² If reasonable minds could differ, the comparison between similarly situated individuals “is itself a jury question.”³³

Trial issues fall into three groups: admissibility of evidence; sufficiency of evidence; and jury instructions. Admissibility issues may arise by objection at trial or by means of a motion in limine. For purposes of determining admissibility, the court must assess whether the comparator evidence is relevant by considering if the factors for determining whether a comparator or set of comparators is sufficiently similar and then determining whether the admission of such evidence would create unfair prejudice in terms of misleading the jury, confusing the jury, and causing delay.³⁴ This may depend on the amount of comparator evidence the plaintiff seeks to offer. Requiring the employer to defend its position on two or three comparators is different than requiring the employer to defend its decision on 10 or 12. Comparator evidence may also be excluded on grounds of hearsay or lack of personal knowledge.³⁵

For purposes of determining whether evidence is sufficient to submit the case to the jury, the court must consider the strength of the comparator evidence in relation to the entirety of the other evidence in the case.³6 Even if the comparator evidence is sufficient to survive summary judgment, that does not mean that it is sufficient to withstand a motion for directed verdict.

It is not necessary, but certainly appropriate, for the court to instruct the jury on comparator evidence.³⁷ A sample instruction would be as follows:

Plaintiff has offered evidence regarding Defendant’s treatment of other employees. This is referred to as comparator evidence.

For purposes of determining whether [race/age/sex/etc.] was a determining factor in the termination decision, you may consider the comparator evidence, but only if you determine that the comparators were outside the protected class and were similarly situated to the Plaintiff in all relevant respects. A similarly situated comparator is someone who dealt with the same supervisor, was governed by the same standards of conduct and engaged in the same conduct without such differentiating or mitigating circumstances as would distinguish the comparator’s conduct from Plaintiff’s conduct or explain why the comparator received different treatment.

If you find that one or more comparators were treated more favorably than the Plaintiff, but you find that such comparators were not similarly situated to the Plaintiff in all relevant respects, you must not consider that evidence for purposes of deciding whether [race/age/sex/etc.] was a determining factor in the termination decision. If you find that one or more comparators were treated more favorably than the Plaintiff, and you find that such comparators were similarly situated to the Plaintiff in all relevant respects, you may consider that evidence, along with all the other evidence, for purposes of deciding whether [race/age/sex/etc.] was a determining factor in the termination decision.

This instruction is designed for use in the context of a termination decision and may need to be modified for use in a different context.

CONCLUSION

When confronted with a comparator evidence argument, either as plaintiff or defendant, it is important to consider the context in which the argument is being raised. Comparator evidence in the context of discipline is different than comparator evidence in the context of hiring, promotion, or layoff. Comparator evidence in the context of discovery is different than comparator evidence in the context of summary judgment or trial. If the employer loses the comparator argument with respect to whether the plaintiff has established a prima facie case, that does not mean the employer will lose the argument at the pretext stage or at trial. An employer confronted with a discovery request for comparator evidence should consider whether the evidence would help their position as opposed to just objecting. Throughout the litigation process, it is important to focus on the specifics of the comparator test and educate the court on the relevant factors and how they apply to the specifics of the case.