In Lewis v. City of Union City, Ga., No. 15-11362, 2019 U.S. App. LEXIS 8450 (11th Cir. Mar. 21, 2019), the U.S. Court of Appeals for the Eleventh Circuit - which covers Florida, Georgia, and Alabama - clarified what the term "similarly situated" means for purposes of Title VII claims of intentional discrimination. Of course this new test still requires an inquiry into the specific facts of each case, but it at least offers some clearer guidance that will hopefully help both employers and employees understand the law around workplace discrimination.
In order to prove discrimination in Title VII cases under the new guidelines, a Plaintiff must show that other people were treated differently under the same or similar situations, and that those other people were “similarly situated in all material aspects.”
Jacqueline Lewis, an African-American woman with a documented heart-condition, was a detective with the Union City Police Department. In 2009, she suffered a heart attack but was later cleared to return to work without restrictions. In 2010, the police department issued a new policy requiring officers to carry Tasers. To carry a Taser, officers were required “to receive a five-second Taser shock” so they could have firsthand experience with the weapon, helping them evaluate when to use it and testify in court about the effects. Officers were also required to receive pepper spray training.
Lewis’ doctor informed the department that she “would not recommend” that a Taser or pepper spray be used “on or near” Lewis, given her “several chronic conditions including a heart condition.” Given these restrictions, the police chief determined that Lewis could not perform the essential functions of her job and placed her on administrative leave until she was cleared to return to “full and active duty.”
Lewis exhausted her accrued leave and did not complete the required Family and Medical Leave Act paperwork to obtain additional leave. Therefore, she was discharged pursuant to the Union City Personnel Policy, which provides that “[a]ny unapproved leave of absence [is] cause for dismissal.” Lewis then sued the City and the Police Chief for race, gender, and disability discrimination.
In her lawsuit, Lewis alleged race and gender discrimination in violation of Title VII of the Civil Rights Act of 1964, the Equal Protection Clause, and 42 U.S.C. § 1981, as well as claims under the Americans with Disabilities Act of 1990.
She identified two white male detectives who failed physical fitness tests, but received more time to correct their failures. Lewis argued that the men were “similarly situated” to her, but were treated more favorably because of their race, gender, or disability status.
The U.S. District Court for the Northern District of Georgia 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. The Eleventh Circuit panel also found “a genuine issue of material fact” on issues including whether the two white male employees were valid comparators, and rejecting use of the “nearly identical” test under the circumstances.
On appeal, a three-judge panel of the Eleventh Circuit reversed, in part, and held that the two men were valid comparators. The Eleventh Circuit, sitting en banc, vacated the panel’s decision and took the case to clarify the proper comparator standard in cases alleging intentional discrimination.
In Lewis, the court first declined to adopt the plaintiff’s suggestion that the “similarly situated” analysis should be considered during the pretext analysis, rather than during the prima facie stage, holding that this would effectively require the defendant to disprove discrimination. Under McDonnell Douglas,the plaintiff must present a prima facie case of intentional discrimination. If the defendant responds with a legitimate business explanation for taking the action in question, the burden then shifts to the plaintiff to demonstrate that the defendant’s explanation is mere pretext. As the court noted, “discrimination is a comparative concept—it requires an assessment of whether ‘like’ (or instead different) people or things are being treated ‘differently.’” Therefore, by not requiring a qualitative comparison at the prima facie stage, “there’s no way of knowing (or even inferring) that discrimination is afoot.” The court held that a “meaningful comparator analysis must remain part of the prima facie case.”
Next, the Eleventh Circuit considered what the phrase “similarly situated” requires a plaintiff to show. In so doing, it sought to strike a balance between “the need to protect employees from invidious discrimination [and] the deference owed to employers’ rational business judgments,” as well as ensuring judicial efficiency by “making summary judgment available in appropriate (but by no means all) cases.”
While the court acknowledged that “all material respects” must be viewed on a case-by-case basis, the court sought to provide guideposts for courts—and, by extension, employers—about what might constitute “a similarly situated comparator”, including that comparators:
“will have engaged in the same basic conduct (or misconduct) as the plaintiff”;
“will have been subject to the same employment policy, guideline, or rule as the plaintiff”;
“will ordinarily (although not invariably) have been under the jurisdiction of the same supervisor as the plaintiff”;
“will share the plaintiff’s employment or disciplinary history”; and
may not have the same title or precisely the same job functions.
Ultimately the court affirmed summary judgment, holding that the plaintiff could not show that her proffered comparators were similarly situated in all material respects. For example, the individuals in question received leave under a policy that was not issued until two years after Lewis’s discharge, suffered from different underlying conditions, and failed physical fitness benchmarks quite different from the training requirement that impacted Lewis.
This decision shows us that, in the absence of direct evidence, a plaintiff seeking to prove intentional discrimination may succeed by demonstrating that similar employees were in fact treated differently - but while the narrower test may provide more clarity, it may also set the bar a little bit higher. This is a helpful finding for employers in the Eleventh Circuit. However, the new test does provide that differences between employees must be more than superficial in order to show that different treatment of employees can be considered defensible business judgment. For this reason, employers may no longer rely on differences in title or duties to justify different treatment of otherwise similar employees.