“Similarly Situated” Does Not Mean “Identical” – The Perils of Overly-Rigid Employee Comparisons for Title VII Disparate Treatment Discrimination Claims
By Robert M. Thomas, Of Counsel
A key element of any prima facie race discrimination claim based on disparate treatment under Title VII of the Civil Rights Act of 1964 (“Title VII”) is evidence that one or more “similarly situated” employees outside of the plaintiff’s protected class were treated more favorably than the plaintiff. On October 26, 2022, in its decision in Dunlevy v. Langfelder,[1] the Court of Appeals for the Seventh Circuit emphasized that this “similarly situated” element does not require an exact match between a plaintiff’s circumstances and a comparator employee’s circumstances in order for a plaintiff to adequately plead a prima facie discrimination claim, and employers cannot rely on unduly specific comparisons between employees in order to defeat such claims.
Dunlevy v. Langfelder – Background
Dunlevy concerned a ‘reverse discrimination’ case in which the plaintiff, a white man, was terminated while another African-American coworker was not. Both men worked for the City of Springfield, Illinois as water meter readers, and were hired subject to an identical 12-month probationary period. They were both hired at the same time, performed the same water meter reader position, received the same rate of pay, and reported to the same supervisor.
Near the end of the probationary period, both individuals were investigated for workplace misconduct, albeit for different reasons. The plaintiff was investigated for at least seven different inaccurate recordings of water meters at different homes, which was a terminable offense. Conversely, his Black co-worker was investigated for starting work late, leaving work early, and walking off the job while on duty for hours at a time. The individual employees’ supervisors recommended to the Mayor of Springfield that both individuals be terminated. However, only plaintiff was terminated, while the other employee’s probationary period was extended by six months.
The Lawsuit, and the Court of Appeals’ Analysis of Similarly-Situated Employees
The plaintiff sued the City, alleging ‘reverse discrimination’. The District Court granted summary judgment in favor of the City and the Mayor, finding that the employees were not similarly situated under Title VII.
The Court of Appeals reversed, finding that the District Court’s analysis into the similarly situated issue was too rigid. The court emphasized that whether two employees are similarly situated is not a rote, one-to-one mapping analysis. Rather, employees are “similarly situated” if they deal with the same supervisor, are subject to the same employment standards, and engage in “similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer’s treatment of them.” In other words, the focus should be on the seriousness of the employees’ respective misconduct, rather than the actual type of misconduct itself.
The court found that it was reasonable to conclude that the misconduct of both employees was sufficiently similar in seriousness, notwithstanding that the types of misconduct were wholly different. Accordingly, because the plaintiff and the other employee were similarly situated for Title VII purposes, but were nonetheless treated differently, the court remanded the case back to the District Court for further proceedings on plaintiff’s reverse discrimination claim.
Key Takeaways
The Dunlevy decision is a salient reminder that employers must treat employees equally when employees engage in similarly serious acts of misconduct. In particular, the key focus must be the seriousness of the acts of misconduct, rather than the simple nature of the acts alone. Employers cannot simply distinguish the differing nature of the acts and expect to defeat a plaintiff’s prima facie discrimination claim based on disparate treatment in the workplace.
[1]--- F.4th ----, 2022 WL 14772768 (7th Cir. 2022).