Employment & Labor Insider

Discrimination lawsuits are often won or lost based on evidence of what we lawyers call “similarly situated employees,” or “comparators” for short. Whether a co-worker who was treated more leniently is a true "comparator" can mean the difference between early dismissal of the lawsuit versus a jury trial.

Not similarly SITuated. (That was terrible. I'm sorry.)

An example may be the easiest way for me to show what I mean.

The customer service rep

Let’s say I’m a female in the protected age group, and I work in customer service. One day, a customer gives me a hard time on our call (which is "being monitored for quality assurance purposes"), and I tell him to go jump in the lake, but in a much more colorful way. My supervisor hears the recording, is appalled at my lack of professionalism, and fires me.

I sue my employer for sex and age discrimination. The supervisor never said a word about my sex or my age, so there’s no “direct evidence” that I was being discriminated against. But I know that my younger male co-worker once used exactly the same colorful expression with one of his customers. In fact, he's the one who taught me the expression, while bragging to me about how "I don't take no cr*p from nobody."

He's still working there, and I got fired. Unfair!

My lawyer will argue that my co-worker and I engaged in identical (mis)conduct, but that I was treated more harshly. Since my co-worker is younger and male, the lawyer will say, the only rational conclusion is that I was discriminated against because I am an older female.

Assuming that our circumstances were really comparable, that might be enough to get my case to a jury.

On the other hand . . . maybe the circumstances weren't really comparable. My customer argued with me on the phone, but maybe my co-worker's customer screamed at him and cussed him out first. Or maybe we had different supervisors. Maybe my co-worker's supervisor was a big softy, while my supervisor was the toughest in the company. Or maybe after the incident involving my co-worker, Human Resources initiated a “zero tolerance” policy on rudeness to customers. And I was unlucky enough to be the guinea pig.

"OWW! That hurts!"

There are many other ways that my co-worker and I might not really be “similarly situated.”

If not, and if I don't have any other evidence of discrimination, chances are that the court would toss my case.

Back to being a lawyer

When you talk to your lawyer about terminating an employee for a policy violation or misconduct, one of the first questions the lawyer should ask is, “How have you treated other employees who did the same thing?” A good HR person will ask the same question.

This question is also very important if you have a collective bargaining agreement because you generally have to follow your “past practice.”

If everybody who’s broken your rule has been dealt with the same way that you plan to treat the current offender, that is great. If this is a first-time-ever occurrence in your company, that may be fine, too. You have no history, so there's no possibility of "inconsistent" treatment.

But life isn’t always this tidy. You may have some employees in the past who really were treated more leniently for committing the same or a very similar offense. If those employees are not in your current employee's "protected category," that puts you at risk for a discrimination claim.

Apples to bananas

That said, differential treatment often has a valid, non-discriminatory explanation. Here are my top six: 

No. 1: Passage of time. Let's say my co-worker’s bad call occurred in 2006, and mine was in 2026. A lot can change in 20 years. There was almost certainly turnover in management, and maybe the company itself was bought out so it isn't even the same company. The applicable work standards may also have been different. Even the law may have changed. (Think about the way a sexual harasser might have been treated in the 1980s, before all the courts recognized the claim, versus now.)

No. 2: Different supervisor. I speculated that my male co-worker may have reported to “Mr. Softy” while I was not so fortunate. Individual members of management are allowed to have their own standards of performance and conduct, at least in the legal world. This can also happen with a predecessor and successor in the same position. For example, maybe “Mr. Softy” was the supervisor when my co-worker went off on his customer. Then Mr. Softy left, and my supervisor replaced him. Once my supervisor takes over, she has the right to be tougher than he was. As long as they each treated similarly-situated employees consistently during their respective tenures, the change from "Mr. Softy" to my boss would not support a claim of discrimination.

Mr. Softy. (I want to work for this guy!)

No. 3: Different technology. Let’s say my co-worker’s customer cuss-out did occur in 2006. I don’t remember whether customer service calls were always being monitored then like they are now. Maybe my co-worker was not being monitored, and so got away with being rude to his customer. Then, when I tried it myself 20 years later, I was being monitored and so I got caught. Arguably, the "new" monitoring technology is what did me in, not any discriminatory motive on the part of the supervisor.

No. 4: Ignorance is bliss. This is somewhat related to the point about monitoring. If no one in management knew what my co-worker had done (for lack of monitoring or whatever reason), that should justify the differential treatment. “Of course we didn’t do anything about Jaden. We had no idea he’d done it. If we had known, we’d have fired him, too.”

No. 5: Different circumstances. This goes back to my speculation that my co-worker’s caller got abusive first, while my caller simply argued with me. The co-worker’s response may have been inappropriate, but arguably it was not as inappropriate as mine was, given the behavior of our respective customers.

No. 6: New rules. An employer may have had a rule or practice five years ago, decided it wasn’t working out, decided to make it tougher (for everybody), and then started applying the tougher standard. That is not discriminatory! Employees who violated the old, lenient rule are not "similarly situated" to employees who violate the current, strict rule. (Of course, as a matter of fairness, it is always a good idea for an employer to let employees know in advance when the rules change. Especially when the rule change is a crackdown. But that's a topic for another blog post.)

Shana tova!

A very happy and blessed new year to all of our Jewish readers!