Eleventh Circuit Clarifies Legal Standard in Evaluating Similarly Situated Individuals

For years, advocates in the Eleventh Circuit have expressed confusion over the term "similarly situated" when addressing claims of discrimination under the McDonnell Douglas burden-shifting analysis. In a rare move, the Eleventh Circuit sought to clear up "the mess" it had created through prior circuit court decisions. As a result of the Court's findings, employers—particularly those in Alabama, Georgia, and Florida—will have more clarity when evaluating possible discrimination claims. More ›

Court Incorrectly Denies Employee Opportunity to Present Comparator Evidence

A product engineer took an approved four-week leave of absence to visit family in Gaza, but upon return, security issues rendered it impossible for him to return to the United States prior to the end of his leave. His employer extended his leave for another 45 days. On the day he was scheduled to be terminated for failure to return to work, the employee sent an email to his supervisors advising that he was finally able to exit Israel and was trying to get a flight back to the United States.The employee returned to work roughly one week later and was informed that he had been terminated. More ›

Seventh Circuit Emphasizes "Flexible" Similarly-Situated test in Discrimination Case Involving Threats, Violence at USPS

A female African-American Postal Service employee of 35 years voluntarily entered a psychiatric clinic to be treated for depression, anxiety, and insomnia. While in treatment, she admitted having homicidal thoughts toward her supervisor. She was eventually discharged after much improvement and returned to work, but her supervisor learned of the threats after calling the clinic. She was almost immediately terminated for what the employer said was a violation of its workplace anti-violence policy.

The employee sued the Postal Service, alleging that she had actually been terminated based upon her race and sex in violation of Title VII of the Civil Rights Act of 1964, as amended. As part of her case, she showed that, shortly before her threats became known, two white male workers who had “jokingly” held down a black worker and pulled a knife on him had only been suspended for 7 days. She argued that this was evidence that the anti-violence policy was a pretext for the actual discriminatory reasons for her termination. The district court granted summary judgment for the Postal Service, reasoning that the male workers, who worked in different positions than the employee and committed a different violation, had not been “similarly situated” to the employee and so could not be used to prove her case.

On appeal, the U.S. Court of Appeals for the Seventh Circuit reversed. The Seventh Circuit held that the district court’s analysis of the “similarly situated” question had been far too demanding. Because the male workers had been terminated by the same decisionmaker, were subject to the same anti-violence policy, and had committed a violation of at least equivalent — and possibly greater — seriousness, they were sufficiently “similarly situated,” and could be used to show that the employer had terminated the female employee for discriminatory reasons rather than violation of the anti-violence policy. The Seventh Circuit emphasized that it is concerned about “the tendency of judges in employment discrimination cases to require closer and closer comparability between the plaintiff and members of the comparison group,” because “[d]emanding nearly identical comparators can transform this evidentiary ‘boost’ into an insurmountable hurdle.”

In light of the Seventh Circuit's statements regarding the flexibility of the "similarly situated" test, employers should ensure that all disciplinary policies are evenly enforced among all employees. Any discrepancy in enforcement can later be used as comparative evidence to support a discrimination claim.