Judging Job Bias by Comparing Workers: Circuit Court Rules Vary

Bloomberg Law - Robert Iafolla
April 11, 2019

Many courts require workers alleging job discrimination to compare themselves to similarly situated colleagues who didn’t face bias. A federal appeals court in Atlanta recently suggested it did those workers a favor by relaxing its definition for those comparable coworkers.

But in the same  decision, the full U.S. Court of Appeals for the Eleventh Circuit also gave employers a boost. The court said judges should thoroughly assess such comparator evidence when workers make their initial showing of discrimination, before employers have to give their reason for taking an allegedly biased action.

The Eleventh Circuit majority said that initial prima facie ” stage is the traditional place for analyzing comparators. The dissenting judges, however, said that forcing workers to provide that evidence before employers give their reason upsets the framework for judging bias cases, dropping an anvil on the employer’s side of the balance. ”

Applying its new rules, the court majority said a Georgia police officer who was fired after refusing to take a test that involved being shocked with a Taser couldn’t show she was discriminated against because she’s a black woman. She offered as comparators two white male officers who were treated less harshly for similarly coming up short on the department’s physical fitness requirements. But those officers weren’t similarly situated comparators since they failed a different test for different reasons than she did, the court said.

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The basic framework for proving deliberate bias absent direct evidence comes from the U.S. Supreme Court’s 1973 decision in  McDonnell Douglas v. Green. Under that structure, a worker first makes a prima facie case of discrimination, then the employer gives a legitimate reason for its actions, and finally the worker attempts to debunk that reason as a pretext.

But trial courts tend to rigorously apply the technical requirements involved in the  McDonnell Douglas  framework when they believe the evidence is weak, while loosening up those rules when assessing a stronger set of facts, said Sandra Sperino, author of the book McDonnell Douglas: The Most Important Case in Employment Discrimination Law. ”

It’s almost like the facts and the legal standards are interdependent of one another, ” said Sperino, a law professor at the University of Cincinnati. It shouldn’t work that way, but that’s what appears to be happening. ”

Compared to What?

The  McDonnell Douglas  decision said comparator evidence workers similar to the plaintiff except for the race, sex, or other protected characteristic that allegedly drove the discrimination is especially useful, said Stephanie Bornstein, a law professor at the University of Florida. Many courts have interpreted that to mean comparator evidence is required, she said.

The full Eleventh Circuit reassessed its comparator rules in its 9-3 decision last month, saying its case law on the threshold for what counts as similarly situated was a mess. ”

Some decisions said plaintiffs and their comparators must be nearly identical, while others rejected that standard, the court said. The circuit accepted comparators who were engaged in the same or similar ” conduct, and even applied both the nearly identical and same-or-similar thresholds simultaneously.

The Eleventh Circuit settled on a threshold of similarly situated in all material respects ” for valid comparators, a standard used by several other courts, including the Second, Eighth, and Ninth circuits. The Fifth Circuit applies a more stringent standard, requiring comparators to be nearly identical. The Seventh Circuit has a flexible test that accepts comparators unless differences make a comparison effectively useless. ”

What it means to be similar in all material respects will have to be worked out on a case-by-case basis, in the context of individual circumstances, ” the Eleventh Circuit said. Generally speaking, a similarly situated comparator and the plaintiff will have engaged in the same conduct, been subject to the same rules, share the same supervisor, and have the same employment or disciplinary history, the court said.

The Eleventh Circuit majority also said the comparator-evidence assessment belongs in the prima facie stage of the  McDonnell Douglas  framework because there’s no way to know discrimination happened without it, the majority said.

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Changing the Inquiry

Beyond its broader signaling functions, some observers pointed to specific consequences of the Eleventh Circuit ruling.

Positioning the comparator analysis in the prima facie stage fundamentally alters the nature of the inquiry, said Katie Eyer, a law professor at Rutgers University.

When you think about who is a comparator, it only makes sense in the context of the employers’ pretext, ” Eyer said. Depending on what stage comparator analysis goes in, courts will focus on the employers’ reason versus everything under the sun. ”

The decision also may prompt employers to file more motions to dismiss to get the case tossed before the workers can bolster their arguments through discovery, said Paul Mollica, an attorney at Outten & Golden.

Trial courts might interpret the ruling as raising the pleading standard, despite a 2002 Supreme Court  decision  that discrimination complaints needn’t contain specific facts to establish a prima facie discrimination case, Mollica said.

This decision hands the district courts a tool without instructions, ” Mollica said. I could see a lot judges acting in good faith but going wrong with it. “