“Similarly Situated in All Material Respects” Standard for Comparators in Employment Discrimination Cases 

The Eleventh Circuit Just Established the “Similarly Situated in All Material Respects” Standard for Comparators in Employment Discrimination Cases 

Halima H. White

Attorney Halima White of The Employment Law Solution

The Eleventh Circuit recently issued an en banc decision explaining who is “similarly situated” to an employment discrimination plaintiff within the meaning of the prima facie case.  The Court determined that neither the “nearly identical” nor the “same or similar” test that had been used in the past is appropriate.  Rather, the test is “similarly situated in all material respects.”   

In the case at hand, the Court determined that the plaintiff did not meet the test when she (a police officer) went on leave following a new policy that officers had to undergo training where they would experience a five-second taser shock and carry tasers on the job.  The plaintiff’s doctor ordered her not to be shocked and not be near a taser shocking.  The officer was told to apply for FMLA leave but did not and was terminated for being absent without a valid reason when her regular leave expired.  She sought to compare herself to officers who went on leave years later for not being able to pass physical fitness tests.  The Court explained how and why that was different.   

Based on the examples and reasoning in the decision, purported comparators can most likely be distinguished if a different work rule was involved, if there were different decision-makers, or if there was a significant time gap between alleged incidents. 

The case is Jacqueline Lewis v. Union City, Georgia, et al., No. 15-11362, March 21, 2019. 

Please contact Halima White at [email protected] for assistance with employment law questions.