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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.