By: Jessica Jackler
One potential key to successfully defend a Title VII (race, sex, national origin, etc.) claim is an evidentiary comparison between how the plaintiff employee was treated by the defendant employer in relation to other similarly situated employees outside the protected class (i.e. “comparators”).
If the employee cannot establish that his or her employer treated them differently than similarly situated employees not in his or hers protected class, the employer might be able to defeat a Title VII claim either alone or in conjunction with one or more presented defenses. This important principle was recently highlighted in three Seventh Circuit Court decisions.
In Marshall v. Indiana Department of Corrections, No. 19-3270 (7th Cir. 9/4/2020), an employee alleged he was terminated as a corrections officer by the correctional facility he worked for because of his sexual orientation. The court determined that while there was a material factual dispute whether plaintiff met the defendant’s legitimate job expectations, plaintiff was unable to demonstrate that “similarly situated employees who did not identify as homosexual were treated different than he was.”
While plaintiff presented evidence of two employees with disciplinary issues who were not ultimately terminated, they were not at the same level or held the same type of authority as plaintiff. They were also not disciplined by the same person or decision-maker as in plaintiff’s situation and the “proposed comparators did not have the same sort of prior disciplinary record Marshall [plaintiff] has.” Based on these differences, the court concluded plaintiff “failed to show a similarly situated person outside the protected class was treated better than he was.”
Similarly, the Seventh Circuit affirmed the lower court’s summary judgment for the employer in Allen-Noll v. Madison Technical College, No. 19-2639 (7th Cir. 8/5/2020) in part because the plaintiff failed to present evidence establishing a valid comparator who was treated more favorably than her.
In Allen-Noll, plaintiff was a teacher at the defendant’s college. After her teaching contract was not renewed, plaintiff filed suit alleging she worked in a hostile work environment and was terminated because of her race and after she complained of discrimination. The school presented evidence which established she did not meet the company’s legitimate expectations, due to student complaints about her and an inability to abide by defendant’s efforts to have her improve her teaching. Plaintiff also failed to present evidence of a valid comparator who was treated more favorably than her.
In contrast to Marshall and Allen-Noll, the court found that the employee in Morris v. BSNF Railway Co., Nos. 19-2808 and 19-2913 (7th Cir. 8/11/2020) presented sufficient evidence in a Title VII race discrimination case, to support the jury’s finding in plaintiff’s favor. The court noted that plaintiff presented evidence that unlike with the termination of an African American, the employer did not terminate non-African American employees who committed similar safety infractions.
Practice Tip: Employers should treat all employees in a similar and consistent fashion related to discipline and up to termination. Evidence that supports similar treatment is very helpful in defending Title VII actions