Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, December 22, 2008

Comparators In Employment Discrimination Case Must Be Similar

2dcircseal Billue v. Praxair, ___F.3d___(2d Cir. Nov. 20, 2008) reminds us that in employment discrimination if you are going to make a claim of disparate treatment the comparators you use should be similar. As the 2d Circuit explained:

We agree with the District Court that plaintiff has not adequately
established disparate treatment because his proposed “similarly situated” employee was materially distinct from plaintiff. See Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (holding that, to establish an “inference of discrimination” in a prima facie case of discrimination, “[a] plaintiff may . . . show[ ] that the employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside his protected group,” and that a comparable employee must be “similarly situated in all material respects” (internal quotation marks omitted)). This
employee, who is white, left his delivery truck unattended for five minutes, with the rear trailer doors locked, within 100 yards of the defendant’s property, and under the surveillance of defendant’s security cameras. By contrast, plaintiff, who is African-American, urinated in a public
parking lot along a highway, temporarily abandoned his truck for roughly 20 minutes while he shopped in a sporting goods store, and did not secure the truck pursuant to defendant’s protocols. Accordingly, we conclude that defendant’s conduct was materially different from the conduct of his
proposed “similarly situated” employee.

Mitchell H. Rubinstein

Employment Discrimination | Permalink

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It is perhaps time for a think the 'comparator' test in all forms of discrimination cases not least as this undermines the issue and defelcts from the crucial question as to whether disparate treatment or less favourable treatment has been employed or deployed by an employer. Discrimination cases have been plagued to the extent of being obsessed with the search for the ultimate 'comparator' similarly situated outside the protected group. But has lead to all sorts of perverse decisions and wrongs leading to a pit of excuses for the employer. More, significantly what if the so called comparator does not exist or indeed can we really compare like for like- the Redfearn decision makes plain that discrimination can be from the same race, therefore what purpose does a comparator hold if we accept that decision.

It is plain from reading leading case decisions that the comparator test is out of date and out of time, put simply either an employer has discriminated along the forbidden grounds whether race, sex, age or otherwise or s/he has not. The central and crucial test to apply to all forms of discrimination is to ask probing questions about the treatment in words or behaviour by an employer and whether that on objective grounds amounted to discrimination. The UK Equality Act 2010 made significant shift in that direction of ditching the comparator in favour of words and behaviour test in the form of reverse burden ie up to employer to account for his/her actions which is to be judged objectively but not exclusively via the comparator. However, recent court decisions have slipped away from this reverse burden test example is the differential treatment of school exclusion case where caucasion children where given disciplinary action for misbehaviour in comparison to their black counterparts who were excluded. This glaring comparator test failed to find any discimination by the school governor's decision, yet the tribunal failed to ask the obvious questions how can they account for the difference in treatment on objective grounds where one group was disciplined and another excluded for the same acts? It is perhaps understandable why the court are anxious to ask questions and apply the full reverse burden on the employer for ultimately the employer is left with a taboo or an unhealthy tag of being classed as racist, but that need not be the case for there is a difference between racism or racists and racial indifference, the latter is no comparator of the former.

Posted by: frednach | Jul 20, 2013 5:02:06 AM

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