Proving Discrimination: Who Is a Proper Comparator to the Plaintiff?

The Seventh Circuit recently published a highly useful opinion providing important guidance on how to prove an employment discrimination case by comparing an employer's adverse action against a plaintiff with how the employer treated other employees in the workforce.

A brief bit of pedanticism: one of the easiest ways to prove a discrimination case is to show that the employer took more severe action against the plaintiff that it did against other employees. The key to the showing is to demonstrate that the comparator employees are "similarly situated" to the plaintiff employee. As you might imagine, this is a highly fact-specific type of inquiry, and courts have struggled to fashion an adequate model of what constitutes a similarly situated employee for many years.

In this case, the U.S. Postal Service (which, as an aside, generates a vastly disproportionate amount of employment discrimination claims involving the federal government) terminated a 32-year, black female employee after it discovered that she told her psychiatrist she had thoughts about killing her supervisor. The Postal Service refused to put her back in her position, although these alleged threats had dissipated by the time her doctors cleared her to return to work. When it ultimately fired her, the Postal Service told her that her expressed threats violated the Postal Service's ban on "violent and/or threatening behavior". According to the Court, the rule in question indicated that there was "no tolerance of violence or threats of violence by anyone at any level" in the Postal Service. The employee sued for race and gender discrimination.

In her lawsuit, the plaintiff employee (who was ultimately returned to work following an arbitration of her discharge) identified two white male employees involved in an incident where they held a knife to the throat of a black male coworker (or brandished a knife, as the Postal Service characterized it) while pinning down his legs. The two employees were suspended without pay for 14 days, later reduced to seven days after the union objected to the severity of the punishment. Although the trial court determined that these two white employees could not serve as comparators because they reported to a different supervisor and held different jobs than the plaintiff, the Seventh Circuit determined that in fact these were proper comparators, and that the different discipline they received justified allowing the case to go forward to a jury.

The court pointed to the fact that even though the two white males had a different supervisor, the person who made the decision to suspend them was the same person who made the decision to terminate the plaintiff. This is a key point for the court--for purposes of determining whether someone is similarly situated, the question is not who the supervisor was, but who the decision maker was. In other words, the plaintiff and the comparators generally must have the same decision-maker for the parties to be considered similarly situated.

Similarly, the fact that the two white males had different job titles and duties than the plaintiff was not significant in this case. As the court noted, the issue is not whether the employer classified the comparators in the same way, but whether the employer subjected them to the same employment policies. In a situation where the comparators worked at the same job site as the plaintiff, were subject to the same standards of conduct, violated the same rule, and were disciplined by the same supervisor, the fact that they held different titles and duties becomes irrelevant.

The court noted that this "same standards" factor will depend on the specific circumstances of the case. Where a case involves quality of job performance, a comparator's job title and duties become much more important. But where the similarly situated employee violated a general workplace rule that applies to everyone, the issue of job title and duties becomes far less important. Perhaps under circumstances where the plaintiff was a relatively low ranking employee, and the similarly situated employee was a senior manager, application of the same policy might be significantly different. But in this case, there was no evidence that in fashioning discipline, the Postal Service took into account the roles or duties of the the plaintiff or the individuals involved in the knife incident.

Finally, the court had little difficulty in noting that the expression of a threat against the supervisor in the context of a psychological evaluation was certainly the equivalent of--if not less severe than--a situation involving the brandishing of a knife against a coworker. Accordingly, the court determined that the plaintiff raised a material issue of fact with respect to her treatment in comparison to other employees who were not in the same protected category. The Seventh Circuit reversed the lower court's summary judgment, and sent the case back for trial.

Lessons? This case is unusual in that the decision-maker involved had clear knowledge of the knife brandishing incident but for some reason elected not to apply the same standard to plaintiff. Having a single point of review for disciplinary actions is one way of making those actions consistent. Another is to identify the factors used in making disciplinary decisions, and record them somewhere so that it's possible to make at least an argument that there was some differentiation between employees. Finally, this decision is quite readable and raises excellent points for practitioners and human resource specialists alike. I highly recommend reviewing it.

"Too Feminine Looking" Discrimination?

Discrimination claims based on appearance usually involve an allegation that a plaintiff is not dressing or acting appropriately for his or her gender role. Classic Supreme Court Law in this area notes at least one case in which a plaintiff was not selected for promotion to accounting firm partner because she did not comport herself in a feminine enough manner. Cases on the flip side of the equation typically contain allegations that the plaintiff is harassed because his appearance wasn't "manly" enough.

So it was a surprise when I came across this case recently coming out of New York. A female junior high school custodian (now there is a job fraught with challenges) was not selected for a promotion. She alleged the novel argument that she was not selected because she appeared to be too feminine, i.e. she wore makeup, and dressed in clothes that, to use the words of the opinion, "accentuated her femininity." The factual basis of the claim was that one of her managers said at one point that the woman did not appear as an authoritative figure, which the plaintiff claimed was an allusion to her highly feminine appearance (totally irrelevant aside--somehow I missed out on highly feminine janitors working at my junior high school).

These so-called "gender plus" cases frequently turn on phrases that are found to be code words for some type of gender bias. The New York federal judge, however, found that "unauthoritative" does not equal "feminine" and noted that there was no other evidence to support the plaintiff's claim that the more "matronly" (is this a polite word for "manish"?) woman that was selected for the promotion was chosen based on her less polished appearance.

The employer's basis for the promotion choice? The allegedly more feminine applicant appeared hesitant and lacked confidence during her interview. The Court found that this was a proper and legitimate explanation for the employer's choice.

Gender plus cases don't apply only to appearance situations, of course. As male and female work and domestic rules continue to evolve, I expect we will see variations of this case continue. At some point, however, the so-called traditional male or female stereotypes may just disappear. Perhaps that day is not too far off.

Deceiving Appearances

In what I presume was an attempt to create some media buzz, a University of Texas economics professor proposed that ugly people should be treated as if they had some type of disability and legally protected from discrimination that results from their unfortunate physical appearance.

I know that the data show that attractive people receive higher pay, better mortgage rates, and typically end up with higher earning spouses. But why that should be remedied by a federal law, and more importantly, how the law could remedy it, are questions the professor doesn't really answer. In fact, given the population I just saw walking around the Atlanta airport,  the adoption of such an appearance standard would put a significant majority of the country in the legally disabled category.

By way of full disclosure, I put myself in this "protected" category, too, just so you know.

Of course, beauty is in the eye of the beholder. The professor indicates that there would be widespread disagreement in most cases, but that there should be almost universal agreement on perhaps 1%-2% population who are truly repulsive.  How you pare those folks out from the others is something I wouldn't want to deal with.  The fact the courts have to do something like this with respect to disability claims is no argument--I don't think we should reasonably expect judges to measure physical attractiveness, as well.  And appearance measurements are cumbersome--how long does it take to pick a Miss America, for example?

On the other hand, there are municipalities that I am aware of that have banned so called "lookism" or discrimination based on appearance. These ordinances typically focus on protecting people with tattoos, body piercings, or other self-inflicted appearance issues. And there is no doubt that any number of businesses have faced litigation for not hiring or terminating people they consider unattractive by virtue of weight or age. Is it such a big step to include appearance as an outright protected category?