Eleventh Circuit: Discrimination Defined When Compared to Similar Employees

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March 21, 2019

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When making a discrimination claim under federal law, an employee must show she was treated differently than a “similarly situated” individual. In Lewis v. Union City, the Eleventh Circuit en banc defined what it means to be similarly situated. Specifically, only employees who are “similarly situated in all material respects” may be compared for purposes of finding discrimination. Although the analysis of similarity of “all material respects” will be determined on a case-by-case basis, the court gave “guideposts” of what to consider. For example, such individuals will have (1) engaged in the same basic conduct, (2) been subject to the same employment policy or rule, (3) ordinarily have the same supervisor, and (4) a shared employment or disciplinary history.

The court gave further guidance on what factors not to compare. For example, minor differences in job function are not disqualifying factors, neither are different job titles. The court stated that “[a]lthough we must take care not to venture too far from the form—‘apples should be compared to apples’—we must also remember that ‘[e]xact correlation is neither likely nor necessary.’”

Although the court attempted to clarify who a “similarly situated” person is, it remains to be seen how these new “guideposts” will be enforced. Employers must take care to review how consistently their policies and procedures are enforced before making decisions that affect an employee’s terms and conditions of employment.

Action Items

  1. Have managers trained on employer policies and procedures for consistent enforcement.
  2. Implement processes to include human resources in employment decisions for tracking of consistent treatment.
  3. Have significant employment decisions reviewed by employment counsel.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

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