The U.S. Court of Appeals for the Eleventh Circuit has clarified that to survive summary judgment, a plaintiff asserting an intentional discrimination claim under the McDonnell Douglas burden-shifting framework must demonstrate, at the prima facie stage, that her proffered comparators were “similarly situated in all material respects.” Lewis v. Union City, 2019 U.S. App. LEXIS 8450; 2019 WL 1285058 (2019) (en banc). While acknowledging that “all material respects” must be determined on a case-by-case basis, the Court explained that a valid comparator will typically: (1) have engaged in the same basic misconduct; (2) have been subject to the same employment policy; (3) have the same supervisor; and (4) have the same employment or disciplinary history.
Under the McDonnell Douglas burden-shifting framework, a plaintiff must prove that he or she: (1) belongs to a protected class; (2) suffered an adverse employment action; (3) was qualified for the job in question; and (4) was treated less favorably than “similarly situated” individuals outside of her protected class. If the defendant responds with a legitimate non-discriminatory business reason for taking the adverse action in question, the burden then shifts back to the plaintiff to demonstrate that the defendant’s explanation is mere pretext “and to carry the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.”
Prior to Lewis, there were conflicting standards for the comparator analysis within the Eleventh Circuit. In previous decisions, the Eleventh Circuit bounced back and forth between three standards—“nearly identical,” “same or similar,” and a hybrid of the two. In rejecting the previous standards, the Court found that the “nearly identical” standard was too strict and the “same or similar” standard was too lenient. Instead, the Court held that a plaintiff proceeding under McDonnell Douglas “must show that she and her comparators are ‘similarly situated in all material respects.’”
Despite acknowledging that “all material respects” must be determined on a case-by-case basis, the Court provided four guideposts to determine whether a plaintiff and her proffered comparators are “similarly situated in all material respects.” The Court explained that valid 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; and
- will share the plaintiff’s employment or disciplinary history.
The Court also held that the “similarly situated” analysis should be considered during the prima facie stage rather than during the pretext analysis. The Court explained that “discrimination is a comparative concept—it requires an assessment of whether ‘like’ (or instead different) people or things are being treated ‘differently’’’ and that “[a]bsent a qualitative comparison at the prima facie stage . . .there’s no way of knowing (or even inferring) that discrimination is afoot.”
This opinion should make it easier for employers – at least those in the Eleventh Circuit – which covers Florida, Georgia, and Alabama – to obtain summary judgment by requiring employees and courts to more rigorously analyze which co-workers can serve as appropriate comparators to support an inference of intentional discrimination. Employers, however, should ensure that they are being consistent in applying their work rules and should avoid relying simply on differences in titles or duties to justify differential treatment. Creating better facts on the front-end of an employment decision and understanding the precedential value of certain personnel decisions is never a waste of time.