On March 21, 2019, the full en banc U.S. Court of Appeals for the Eleventh Circuit clarified that in order to establish a prima facie case of workplace discrimination through alleged preferential treatment of a comparator outside of the plaintiff’s protected class, a plaintiff must show that the alleged comparator is “similarly situated in all material respects.” Lewis v. City of Union City, No. 15-11362, 2019 WL 1285058, *2 (11th Cir. 2019).  The Court rejected its previous standards of “nearly identical” and “same or similarly situated.” 

In Lewis, an African-American woman sued her former employer, the Union City Police Department, after she was terminated in 2010.  The plaintiff’s doctors recommended to the defendant that the plaintiff should not undergo a Taser shock due to a previous heart attack.  Because she was restricted from the Taser training, the defendant determined that she could not perform the essential duties of her job and placed her on leave.  When her leave ran out, she was terminated.  The plaintiff alleged that the defendant discriminated against her on the basis of her race and gender.  She identified two alleged comparators who had failed portions of their training, but re-took and passed the training at a later date.

The Court emphasized that the new “similarly situated in all material respects” standard for evaluating comparator evidence “leaves employers the necessary breathing space to make appropriate business judgments” and “accord different treatment to employees who are differently situated in ‘material respects.’” Although the “all material respects” standard will be determined on a case-by-case basis, the Court identified some “guideposts.” Ordinarily, a comparator will typically (1) have engaged in the same basic misconduct; (2) have been subject to the same employment policy; (3) have the same supervisor; and (4) have the same employment or disciplinary history.  Minor differences in job title or job function will not ordinarily rule out an individual as a potential comparator.

The Court’s holding in this case represents a shift in analysis of all Title VII cases.  Employers should consult with their attorney regarding any on-going litigation and prior to taking any disciplinary action in instances that might lead to litigation.