By Amy Knapp

What does it mean within the context of the McDonnell Douglas burden-shifting framework for a plaintiff to show she was treated less favorably than other “similarly situated” individuals?  The U.S. Court of Appeals for the Eleventh Circuit has cleared up this oft-debated aspect of a plaintiff’s prima facie burden in Lewis v. City of Union City by holding that “similarly situated” means “similarly situated in all material respects.”  On March 21, 2019, sitting en banc and ruling in favor of an employer on summary judgment, the Eleventh Circuit nixed other “similarly situated” standards and instead espoused its new “similarly situated in all material respects” standard.  This new standard, and the Court’s application of it, is a big win for employers, but it leaves open questions about what aspects for comparison are indeed “material.”

In this case, the plaintiff argued for the Seventh Circuit’s approach, which finds employees to be “similarly situated” so long as the distinctions between them are “not so significant that they render the comparison effectively useless.”  The Eleventh Circuit rejected this approach, calling it “too lax,” and explained that, if adopted, it would eliminate the “apples-to-apples” comparison required to determine if an employer has engaged in discrimination.  The employer argued for a “nearly identical” standard, which the court rejected as “too strict.”  In the real word, true doppelgangers are rare, and, moreover, exact correlation isn’t necessary to show discrimination.

Thus, rejecting standards that were too lax and too strict,, the Court created a middle ground and put forth the “similarly situated in all material respects” standard.  Under that standard, ordinarily, a similarly situated employee will have some key similarities to the plaintiff, including: (1) having engaged in the same basic conduct (or misconduct); (2) having been subject to the same employment policy, guidelines, or rule; (3) will (typically) have worked for the same supervisor; and (4) will share the plaintiff’s employment or disciplinary history.  Notably, the Court explained that the comparator need not have the same job title or precisely the same job functions.

The Court’s new standard, and particularly its application of that standard, is a significant win for employers (at least those in the Eleventh circuit, where Alabama, Georgia, and Florida sit).  However, what is and is not a “material” basis for comparison will always be a moving target; it will depend on the facts of the case and on how broadly or narrowly a court views each factor.  But, at least now employers have some guideposts.