Does Similar Mean Identical?  The Meaning of “Similarly Situated” in Employment Discrimination Cases

The Setting

In most employment discrimination cases, the employee alleging discrimination against his employer must show that he was treated differently from similarly situated employees because of his protected class (i.e., his race, gender, sex, religion, age, disability, etc.).

What does “similar” mean though?

The Split

The Fifth

The Fifth Circuit held in Perez v. Texas Dept. of Criminal Justice (2004), that “the jury must find the employees’ circumstances nearly identical in order to find them similarly situated.”

In this case, Perez alleged the Texas Department of Criminal Justice (TDCJ) fired him because of his race.  Perez had been arrested and charged with felony assault after he allegedly stabbed a former TDCJ inmate while off-duty at a bar.  He refused to answer TDCJ’s questions about the incident at the advice of counsel.  Perez was subsequently fired for engaging in conduct that jeopardized TDCJ’s integrity.  Perez showed that two other, non-Hispanic employees, who had respectively committed involuntary manslaughter and drunken assault, had not been fired.

The lower court instructed the jury that “similarly situated” means “the quantity and quality of the other employees’ misconduct must be of comparable seriousness to the misconduct of the plaintiff.” The Fifth Circuit found this erroneous because it “suggested that comparably serious misconduct was by itself enough to make employees similarly situated.”  Instead, the court set its hat on a stricter standard of proof, and held that “similarly situated” means “nearly identical.”

TDCJ had distinguished Perez’s conduct from that of other felonious employees because Perez’s alleged victim was a former inmate, whereas the other victims were unaffiliated with TDCJ.  The court found that this sufficiently threw Perez out of “nearly identical” territory, vacated the lower court’s judgment, and remanded the case for further proceedings consistent with this higher standard.

The Seventh

The Seventh Circuit, on the other hand, rejected this narrow interpretation in Ezell v. Potter (2005) and held that “the other employees must have engaged in similar–not identical–conduct to qualify as similarly situated.”   In this case, Wright, an African-American woman, fired Ezell, an over-50, Caucasian letter carrier for taking an unauthorized extended lunch break.  Ezell claimed that because Wright had made derogatory comments about white people, older letter carriers, and men, the reason for his termination was pretext.

The lower court interpreted “similarly situated” to mean that Ezell “must produce a non-Caucasian employee who committed exactly the same infraction and was treated more favorably.”

The Seventh Circuit took issue with this narrow interpretation and found, essentially, that “similar” means “similar” and not “identical.”

Under this broader approach, the court found that Ezell had sufficiently supported his race and sex claims to survive summary judgment because Wright had not herself been fired for falsifying records and because Wright had not fired an African-American man for losing a piece of certified mail.  The court found that these offenses were “very similar” to Ezell’s conduct.  The court also found that Wright sufficiently supported his age claim for summary judgment purposes because he alleged that Wright and her co-supervisor had a plan to fire and replace older letter carriers with younger, faster letter carriers.

The Significance

Employment discrimination is notoriously difficult to prove because it involves a lot of “he said, she said” evidence.  Further, the employee usually is unable to support his or her contentions with documentation in the same way that organized employers are able due to their required and established procedures.  This puts employees at a disadvantage in the conflict.

One way of proving discrimination is by showing that similarly situated employees were treated more favorably.  These allegations usually rely on the alleging employee’s word, but can be supported by documentation from the employer.  This helps level, to some degree, the disadvantage noted in the preceding paragraph by using the employer’s own documentation against it.  However, courts in agreement with the Fifth Circuit’s “nearly identical” ruling, raise the bar even higher for employees alleging discrimination.

Looking Forward

It is standard that alleging parties have the burden of proof.  Nonetheless, it is time for SCOTUS to decide whether similar means similar or whether similar means nearly identical.  Resolving this dispute has implications on the degree to which employees are burdened in an already uneven playing field.