Two separate U.S. Court of Appeals reiterated that, for purposes of establishing discrimination, comparators need only be similarly situated and not identical.
In Andujar v. General Nutrition Corp., the employee claimed age discrimination, relying on evidence that, although there were multiple younger store managers in his region with failing performance scores, he was the only one put on an action plan and then terminated. The employer argued that the other managers were not appropriate comparators for various reasons – their stores did not have failing audit scores, they had worked only a short time, or they had engaged in different misconduct. The U.S. Court of Appeals for the Third Circuit, however, found that the comparators were all either managers or assistant managers in the same region with failing performance scores, and that this was enough for a jury to decide if they were similarly situated for purposes of finding discrimination.
Similarly, in Haynes v. Waste Connections, Inc., the African-American employee asserted a race discrimination claim, based in part on evidence that a white co-worker reporting to the same supervisor had committed several workplace infractions but was not fired. Although the infractions were not the same, the U.S. Court of Appeals for the Fourth Circuit stated that comparators “will never involve precisely the same set of work-related offenses occurring over the same period of time and under the same sets of circumstances.”
Thus, both in terms of imposing discipline and in defending against claims of discrimination, employers must be thoughtful and open-minded about which employees may be appropriate comparators for purposes of ensuring consistency of treatment.