USING COMPARATOR ANALYSIS TO A COMPANY’S ADVANTAGE

By Kenneth S. Williams

Employment discrimination involves situations where an employer is accused of intentional discriminatory conduct in hiring, firing or discipline based on a person’s legally protected characteristics such as age, race, sex, religion, or national origin. Most of these matters fall under the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e – 2000e17 (as amended), known as Title VII, but many other federal and State statutes protect against employment discrimination. Examples include The Age Discrimination in Employment Act of 1967 (ADEA); 27 U.S.C.A. § 63D et seq. and The Equal Pay Act of 1963 as amended, 29 U.S.C. § 206(d).

            Intentional discrimination claims can be proven in two ways. The first involves direct evidence of discrimination, things seen or heard such as statements or emails, and other “smoking gun” proof, and normally resulting from the acts of supervisors having a meaningful role in the decision-making process. If direct proof is believed, then it can be concluded that discrimination was a motivating factor in an employer’s decision.

It is relatively rare for an employee to show workplace discrimination by direct proof.  Instead, most employees must present indirect or circumstantial evidence to establish discrimination. Fifty years ago, the U.S. Supreme Court adopted a burden shifting analysis to evaluate discrimination claims shown by indirect proof. See McDonnell Douglas Corp., 411 U.S. 791, 98 S.Ct. 1817; 36 L.Ed.2d. 668 (1973). Under the McDonnell Douglas framework, an employee must first establish a prima facie case of discrimination. If successful, then the burden shifts to the employer to state a legitimate, non-discriminatory reason for its actions. Finally, the employee must demonstrate that the reasons for the employer’s actions were insufficient, or pretextual, making the question of discrimination one for the jury to decide.

Under McDonnell Douglas, to establish his or her prima facie case, an employee must show, by a preponderance of the evidence, that he or she (1) was a member of a protected class; (2) suffered an adverse employment action; (3) was qualified for the position; and (4) was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees. If an employee cannot show all elements of his or her prima facie case of discrimination, then the claim will be dismissed. 

Using internal data and information, employers have the opportunity to challenge an employee’s circumstantial discrimination claims at the prima facie stage. Specifically, to survive dismissal the employee must establish that he or she was treated differently than similarly situated, non-protected employees. This is done through what is called comparator evidence, attempting to show that one or more other employees, not in his or her protected class, were treated more favorably or leniently in terms of hiring, firing or discipline. Examples would include comparing the treatment of workers of different races, or a female alleging that males are held to different standards.

Recently, in Blount v. Stanley Engin. Fastening, 55 F.4th 504 (6th Cir. 2022), the Sixth Circuit addressed comparator proof where race discrimination was alleged in the context of an employee termination. The Blount case sheds light on ways to prove, or disprove, this element of the prima facie case. In the Sixth Circuit comparator characteristics need not be identical, but to be considered a bona fide comparator, one must be shown to be similarity situated in all relevant and material respects, engaging in acts of comparable seriousness. Superficial similarity of employees, standing alone, will be insufficient to carry the employee’s burden of proof.

Comparisons of unlike things, such as one employee’s theft being compared to another’s attendance violations, are obviously dissimilar. Other comparisons will require a more detailed analysis, and various factors are considered in evaluating similarities between employees. These include whether the comparators engaged in the same conduct, dealt with the same or a different supervisor, or were held to the same or differing standards of conduct. The degree and type of misconduct by comparators is also important, and the misconduct must be sufficiently similar in both type and degree. Other differentiating or mitigating circumstances are also examined which might distinguish conduct between comparators, such as differences in job titles or responsibilities, work experience, and past work and disciplinary records. Conduct standards for a manager, for example, are likely dissimilar when compared to an assistant manager or hourly worker. A comparator’s disciplinary warnings or negative performance reviews, standing alone, are probably insufficient to show substantial similarity in the absence of similar work issues. Whether or not the employee was on probation when the comparator was not is a consideration as well. For workplace safety violations, comparators may be dissimilar if the employee risked injury to others but the comparator only risked injury to himself or herself, if one injury risk is minor compared to the other, and when repeat safety violations are contained in the employee’s file but are absent in the comparator’s file.

Comparator analysis can be fact intensive. The employee bears the burden of proof at the prima facie stage and will likely present one or more comparators to show less favorable treatment. Because of its workplace familiarity, a company’s human resource team plays an important dual role in any comparator analysis. For the employee’s comparators intended to show less favorable treatment, the human resources team can assist counsel by flagging dissimilar facts and characteristics distinguishing comparators. Equally important is the ability of the human resources team to ferret out and locate other workplace comparators, who can be used by counsel to show consistency and equality of treatment across age, sex, race, or other classes. 

Comparator analysis, of necessity, involves the use of employment records of other past and present employees. For that reason, it is crucial to recognize the value of documenting all factors relevant and considered in decisions to hire, fire or discipline. A proper paper trail showing consistency of treatment is a great tool for counsel, the court, and a jury. The company should always strive for consistent and evenhanded treatment of all employees across all classes because the strength or weakness of any comparator analysis correlates to the equality of treatment in the workplace.