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Good Explanation of How Employers Do or Do Not Discriminate Among Similarly Situated Employees

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The most common type of discrimination case is based on what the law calls "disparate treatment," which is often defined as treating employees of different races and sexes differently who are similarly situated in all material respects.  As a result, disparate treatment cases often turn on the issue of whether persons of different races or sexes are actually similarly situated.  A recent ruling for one employer in the Eleventh Circuit Court of Appeals does a good job of describing what these terms mean.  Stimson v. Stryker Sales Corp., No. 19-14997 (Nov. 30, 2020).  The case involves two employees disciplined in a different manner for the same "no lie, no cheat, no steal policy."  

While the court found that the two employees being compared, one younger than 40 years old and one older, were similarly situated in some respects because they were being disciplined under the same policy, the court nevertheless found that their misconduct differed in certain material respects.  First, the basis of the misconduct that began the investigations differed - one was accused of sexually harassing a nurse while the other was accused of physically bullying a co-worker and joking about his sexuality.  Additionally, the older employee who was discharged had evidence leading HR to conclude that he had been dishonest during its investigation, while there was no such evidence as to the younger employee.  Third, the evidence supported the conclusion that the employer believed that one employee had not been intentionally dishonest, while the other had been intentionally dishonest.  Next, the court recognized that the two employees were supervised by two different individuals, and that while HR investigated both cases, it was the different supervisors that maintained the responsibility of making the final decision to terminate each employee.  Lastly, the two individuals did not share a substantially similar employment disciplinary history.  One had several years of seniority, while one was newer to the company.  They had different job titles and duties.  One employee had never been reported for misconduct previously, while the other was reported for harassment several years earlier.  Thus, the court concluded that the two employees were not similarly situated in all material respects, and the older one could have been properly terminated while the other received lesser discipline. 

Editor's Note - Whether the employer treats people equally comes up in almost every disparate treatment case.  When a plaintiff contends that persons of different races, sexes or ages have been treated differently, the above case looks at some of the criteria a court can use in determining whether the compared employees are truly "similarly situated in all material respects."

This is part of our July 2021 Newsletter.

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