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Judging Job Bias by Comparing Workers: Circuit Court Rules Vary

April 11, 2019, 10:12 AM

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.

Standards for handling comparator evidence vary by circuits. There are even unacknowledged conflicts within some circuits, according to legal scholars.

The Eleventh Circuit’s ruling highlights how appeals courts try to regulate the outcomes of highly fact-dependent cases by calibrating elements of the legal test for proving intentional job discrimination without direct evidence. Critics say that focusing on whether workers meet those technical requirements overshadows the central question: whether they faced discrimination.

“There are very few jobs for which a ‘perfect’ comparator exists,” said Suzanne Goldberg, a law professor at Columbia University. “As the economy continues to diversify, a rigid approach to comparators will cut the heart out of anti-discrimination law.”

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.

However, the dissenting judges pointed to past rulings in which the circuit applied the similarly situated standard more thoroughly at the pretext stage, as have the Sixth and Eighth circuits. “Indeed, the Supreme Court has never rigorously scrutinized comparators at the prima facie stage,” according to the dissenters.

Signaling Function

The varying comparator standards have a broad, atmospheric effect by signaling to trial courts how they should view allegations of workplace bias, several legal scholars and practitioners said. The more demanding the definition for similarly situated and the earlier the comparator analysis, the higher the bar for workers to prove intentional discrimination, they said.

But it makes little practical difference whether rigorous comparator analysis comes in the prima facie or pretext phase, according to Scott Moss, a law professor at the University of Colorado who continues to litigate. Comparator evidence is dealt with in summary judgment motions addressing all three McDonnell Douglas stages, so the only relevance of a certain circuit’s rule is where in the brief the comparator argument appears, he said.

The ruling also further cements the misconception that the McDonnell Douglas test requires comparator evidence, legal scholars said.

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 of judges acting in good faith but going wrong with it.”

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Jay-Anne B. Casuga at; Martha Mueller Neff at