On March 21, 2019, finding in favor of an employer seeking summary judgment, the U.S. Court of Appeals for the Eleventh Circuit, in Lewis v. City of Union City, clarified the definition of “similarly situated” comparators for claims of intentional discrimination, jettisoning the commonly cited “nearly identical” and “same or similar” standards in favor of a test asking whether comparators are “similarly situated in all material respects.” Although the appellate court—which covers Florida, Georgia, and Alabama—acknowledged that this new test still requires an inquiry into the specific facts of each case, it offered some guideposts that may help inform employers’ business decisions regarding employees.


The plaintiff, Jacqueline Lewis, an African-American woman, was a detective with the Union City Police Department. In 2009, she suffered a heart attack but was cleared to return to work without restrictions. In 2010, the police department issued a new policy requiring officers to carry Tasers. To carry a Taser, officers were required “to receive a five-second Taser shock” so they could have firsthand experience with the weapon, helping them evaluate when to use it and testify in court about the effects. Lewis was also required to receive pepper spray training. Lewis’ doctor informed the department that she “would not recommend” that a Taser or pepper spray be used “on or near” Lewis, given her “several chronic conditions including a heart condition.” Given these restrictions, the police chief determined that Lewis could not perform the essential functions of her job and placed her on administrative leave until she was cleared to return to “full and active duty.” Lewis exhausted her accrued leave and did not complete Family and Medical Leave Act paperwork to obtain additional leave. Therefore, she was discharged pursuant to the Union City Personnel Policy, which provides that “[a]ny unapproved leave of absence [is] cause for dismissal.”

In her lawsuit, Lewis alleged race and gender discrimination in violation of Title VII of the Civil Rights Act of 1964, the Equal Protection Clause, and 42 U.S.C. § 1981, as well as claims under the Americans with Disabilities Act of 1990, which were not before the en banc court. She identified two comparators: both white male officers who, in 2013 and 2014, had failed portions of fitness tests and were given 90-day administrative leaves to attempt to remedy their performance. The district court granted summary judgment to the defendants, finding that under a “nearly identical” or “same or similar” standard, Lewis’s proffered comparators did not satisfy her prima facie case. An Eleventh Circuit panel reversed, finding “a genuine issue of material fact” on issues including whether the two male employees were valid comparators, and rejecting use of the “nearly identical” test under the circumstances. This en banc decision followed.

Majority’s Legal Analysis

In a case of intentional discrimination lacking direct evidence, a plaintiff may survive summary judgment by satisfying the three-stage burden-shifting framework of McDonnell Douglas. First, to make out a prima facie case, the McDonnell Douglas test requires a showing that (1) the plaintiff belongs to a protected class; (2) he or she was subjected to an adverse employment action; (3) he or she was qualified to perform the job in question; and (4) the employer treated “similarly situated” employees outside the plaintiff’s protected class more favorably. Once a plaintiff succeeds in showing a prima facie case, the defendant must “articulate a legitimate, nondiscriminatory reason for its actions.” Finally, if the defendant meets its burden, the plaintiff must then show that the defendant’s reason was merely a pretext for unlawful discrimination, ultimately persuading the factfinder that he or she was a victim of intentional discrimination.

In Lewis, the court first declined to adopt the plaintiff’s suggestion that the “similarly situated” analysis should be considered during the pretext analysis, rather than during the prima facie stage, holding that this would effectively require the defendant to disprove discrimination. As it noted, “discrimination is a comparative concept—it requires an assessment of whether ‘like’ (or instead different) people or things are being treated ‘differently.’” Therefore, by not requiring a qualitative comparison at the prima facie stage, “there’s no way of knowing (or even inferring) that discrimination is afoot.”

Next, the court considered the usefulness of the “nearly identical” or “same or similar” tests, as well as the plaintiff’s proposal to use the Seventh Circuit’s standard, which would find the “similarly situated” requirement met “[s]o long as the distinctions between the plaintiff and the proposed comparators are not ‘so significant that they render the comparison effectively useless.’” Finding these tests ranging from too strict to too lax, the court held that “a plaintiff must show that she and her comparators are ‘similarly situated in all material respects.’” In so doing, it sought to strike a balance between “the need to protect employees from invidious discrimination [and] the deference owed to employers’ rational business judgments,” as well as ensuring judicial efficiency by “making summary judgment available in appropriate (but by no means all) cases.”

Despite acknowledging that “all material respects” must be viewed on a case-by-case basis, the court sought to provide guideposts for courts—and, by extension, employers—about what might constitute “a similarly situated comparator.” Such a comparator:

  • “will have engaged in the same basic conduct (or misconduct) as the plaintiff”;
  • “will have been subject to the same employment policy, guideline, or rule as the plaintiff”;
  • “will ordinarily (although not invariably) have been under the jurisdiction of the same supervisor as the plaintiff”;
  • “will share the plaintiff’s employment or disciplinary history”; and
  • may not have the same title or precisely the same job functions.

In Lewis, the court affirmed summary judgment, holding that the plaintiff could not show that her proffered comparators were similarly situated in all material respects. For example, the individuals in question received leave under a policy that was not issued until two years after Lewis’s discharge, suffered from different underlying conditions, and failed physical fitness benchmarks quite different from the training requirement that sidelined Lewis.

Three Judges Dissent

Three judges dissented from the majority’s opinion, agreeing with the test outlined by the majority, but arguing that the implementation by the court “drops an anvil on the employer’s side of the balance,” making it more difficult for plaintiffs to survive summary judgment. In their view, the three employees were similarly situated in all material respects because they had all been put on involuntary administrative leave for being physically unfit for duty. The reasons for their different treatment (their different conditions, policies in effect at the time, etc.), the dissent argued, should be considered during the later stages of the proceedings, not the prima facie stage, where the plaintiff’s burden is “not onerous.”

Key Takeaways

As this decision emphasizes, in the absence of direct evidence, a plaintiff seeking to prove intentional discrimination may succeed by demonstrating that similar employees were in fact treated differently. Here, the court disagreed that the treatment of employees several years after the plaintiff’s discharge, on different facts and pursuant to a new set of policies, could suffice to show a prima facie case of discrimination. This is a helpful finding for employers in the Eleventh Circuit. However, the test adopted by the majority does provide that differences between employees must be more than surface level to reflect an employer’s defensible business judgment. Therefore, employers may want to avoid relying on superficial differences in title or duties to justify different treatment for otherwise similar employees.