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On March 21, 2019, the Eleventh Circuit Court of Appeals (which covers employers in Florida, Georgia, and Alabama) issued a decision that helps us answer this question: How do employees prove they were victims of unlawful discrimination in the workplace? Lewis v. City of Union City, Ga., No. 15-11362 (11th Cir. Mar. 21, 2019).  For those of you with lots of time on your hands, you can click on the hyperlink and read the 100-page decision. Yawn.   For everyone else, here’s the skinny on this case. . .

The plaintiff, Jacqueline Lewis, worked as a police officer for Union City, Georgia Police Department. She had a heart condition, but was cleared to work in law enforcement.  Her department acquired Tasers and required all officers to carry them and submit to a five-second Taser shock as part of their training.  Officer Lewis was not cleared by her doctor to submit to such testing, was placed on administrative leave until she was cleared to submit to a Taser shock, and ultimately terminated for exhausting her leave.  She claimed that this decision was discriminatory because two other White, male detectives [which in legal-speak are called “comparators”], all of whom failed a physical fitness test, were afforded greater opportunity to correct their failures or obtain alternative employment.  Consequently, Officer Lewis filed a lawsuit claiming that her employer treated her co-workers outside of her protected classes (African American, female) more favorably.  In her lawsuit, she asserted claims under several federal statutes, including Title VII of the Civil Rights Act of 1964.

The issue in this case was how “similarly situated” must a plaintiff be to a comparator in the workplace to establish a prima facie case of discrimination under Title VII. “Prima facie” is just a fancy Latin term that means “on its face” or “at first sight.” In other words, the employee’s evidence must be enough to allow a judge or jury to infer that discrimination took place.   According to the recent Eleventh Circuit decision:

One way that she can do so is by satisfying the burden-shifting framework set out in McDonnell Douglas. When proceeding under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by showing (1) that she belongs to a protected class, (2) that she was subjected to an adverse employment action, (3) that she was qualified to perform the job in question, and (4) that her employer treated “similarly situated” employees outside her class more favorably. 

Let’s focus on the fourth prong of this test. How does a plaintiff establish that he/she is similarly situated to a comparator?  According to the Eleventh Circuit, the plaintiff must show that he/she and the comparator(s) are “similarly situated in all material respects.” This does not mean that the plaintiff and the comparators need to be “nearly identical.”  Rather, the court indicated that a “similarly situated” employee is someone who, when compared to the plaintiff: (1) engaged in the same basic conduct (or misconduct); (2) is subject to the same employment policy, guideline, or rule; (3) reports to the same supervisor; and (4) shares the same employment or disciplinary history.

Applying this standard, the court dismissed Officer Lewis’s claims because it found that she and her White, male comparators were placed on leave years apart and pursuant to different personnel policies.  Furthermore, the White, male officers’ medical conditions were deemed remediable, while her heart condition was not – it was chronic.

When deciding on appropriate discipline, it is prudent for employers to examine how they have disciplined similarly situated employees. The Eleventh Circuit’s decision reinforces the importance of keeping accurate performance records and consistently applying policies to ensure that no matter how you slice it, similarly situated employees are treated in a uniform fashion.

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