WHO ARE THE SIMILARLY-SITUATED?
“All things being equal, if an employer takes an action against one employee in a protected class but not another outside that class, one can infer discrimination. The ‘similarly situated’ prong establishes whether all things are in fact equal.” Consequently, any union rep involved in representing employees in disciplinary or other harmful actions should know what makes employees similarly-situated.
We just got a lot of help with making that comparison from the 7th Circuit Court of Appeals in a decision titled, as Coleman v. Donahoe (2012) which wrote the opening quote of this post. It is an excellent analysis of what makes two employees similarly-situated. In the case, one employee held a co-worker down and put a knife to his throat. Another employee revealed to her therapist that she had thoughts about killing her supervisor. The former was suspended while the later was fired. The former was a white male and the latter an African-American woman.
The purpose of the similarly-situated analysis is to the arbitrator or judge eliminate other possible explanatory variables, “such as differing roles, performance histories, or decision-making personnel, which helps isolate the critical independent variable” — discriminatory animus. INSERT
The 7th Circuit began by noting that the similarly-situated analysis calls for a “flexible, common-sense” examination of all relevant factors.” It does not require “precise equivalence” between the two employees only that they are comparable. That raises the question of what makes two employees comparable, which the court answered by pointing to three factors that must be present: the two employees-
(1) “dealt with the same supervisor,”
(2) “were subject to the same standards,” and
(3) “engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer’s treatment of them.”
THE SAME SUPERVISOR- The court quickly noted that while it sometimes phrased the question ambiguously as whether the comparators dealt with the same supervisor, the real question is whether they were treated more favorably by the same decisionmaker. In this case the employees had different immediate supervisors but the same higher level manager approved both discipline decisions. That was enough similarity to satisfy this court. In federal agencies where disciplinary actions often must be approved by someone several levels up in the management chain, this gives the union a chance to look very widely for the other factors.
THE SAME STANDARDS- The court made clear that a difference in job title alone is not the critical fact “Formal job titles and rank are not dispositive ….” Rather, the core question is whether the employer subjected them to different employment policies. In this case it found that they were subject to the same standards of conduct and violated the same rule. That is all the court needed to decide this element of the three-part criteria was met.
THE SAME SERIOUSNESS- Both were charged with violating the rule that prohibits “Violent and/or Threatening Behavior.” While they did not break the rule in precisely the same manner the court said that a jury or arbitrator could decide if the difference was significant, “Where a proposed comparator violated the same rule as the plaintiff in an equivalent or more serious manner, courts should not demand strict factual parallels.”
So, when a union member shows up at your office with a proposed disciplinary or other harmful action notice letter, keep the similarly-situated defense in mind and start examining the similarity of decisionmaker, standards and seriousness. Generally the easiest way will be to e-mail LR something like the following: “Pursuant to our rights to information in law and contract, we ask for the following data: the race, national origin, gender, age, etc. of all employees who have been disciplined in the last XX years who work under the same official who was highest in the chain of command that approved, concurred, or otherwise played a part in the decision to XXXXXX the employee named __________. We want to know the offenses which led to the discipline, the penalty imposed, and any mitigating factors which were listed in the decision letter. We also request that you provide the job titled, office-location, and salary grade.”