Avoiding Discrimination Claims by Treating Similar Employees Equally

By: Nathaniel M. Jordan, J.D.

One of the basic rules of the workplace is that employers must treat employees fairly and equally. In a Title VII employment lawsuit, an employee claiming discrimination can win by showing that her employer treated her differently than other “similarly situated” employees. But who is similarly situated? Defendant employers usually prefer a narrow definition, so that fewer employees can be used for “similarly situated” comparisons in a lawsuit. Plaintiff employees usually prefer the opposite. Recently, the Seventh Circuit expanded the “similarly situated” definition, ruling that employees can be similarly situated even when they have different job titles and duties.

In Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012), the Postal Service (the governmental entity, not the talented musical group of similar name) fired African-American mail processing clerk Denise Coleman because she told a psychiatrist she had thoughts of killing her supervisor. Ms. Coleman sued, arguing that the Postal Service discriminated against her on the basis of sex and race. She presented evidence that two white male maintenance mechanic employees at the same facility had recently threatened another employee at knife-point but got only one-week suspensions from the same manager who fired her. The district court found in favor of the Postal Service, deciding that the mechanics were not similarly situated because they had different positions and direct supervisors than Ms. Coleman. But, on appeal, the Seventh Circuit disagreed, reversing the district court’s decision.

The Seventh Circuit wrote that, to be similarly situated, employees must be directly comparable in all material respects, but they don’t have to be clones of the plaintiff. Usually, a plaintiff needs to show that the comparator employees dealt with the same supervisor, were subject to the same standards, and engaged in similar conduct, but this is not a “magic formula” that must be strictly followed. In Coleman, even though the plaintiff and comparator employees reported to different supervisors, their internal investigations were conducted and discipline was decided by one decision-maker, the facility’s maintenance operations manager. And even though the three employees had different jobs, they were all at the same job site, were subject to the same standards of conduct, and violated the same rule. When a plaintiff alleges uneven discipline, job description and duties are less important factors in the similarly situated analysis than the alleged misconduct, performance standards and disciplining supervisor.

Before Coleman, it was important to treat comparable employees equally. Coleman simply expands the pool of employees that should be considered comparable, especially for disciplinary actions. When considering which employees might be similarly situated, don’t just think about employees with the same job title, duties, and direct supervisor. For disciplinary actions in particular, consider all other employees under the same conduct standard who have violated the same disciplinary rule, especially where the disciplinary decisions were made or investigations conducted by the same person. By treating all similar employees equally, you are less likely to have your employment decisions later reviewed by a jury.

If you have any questions about this Article, contact a member of Yoder Ainlay Ulmer & Buckingham’s Employment Law Practice Group at (574)-533-1171.

Disclaimer: These materials are for informational purposes only and should not be construed as legal advice on any specific facts or circumstances. We recommend you consult a lawyer if you want professional assurance your interpretation of these materials is appropriate to your particular situation.

©  Yoder Ainlay Ulmer & Buckingham, LLP [May 2012]