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.

A Split that Splits: Moral Turpitude in the Circuits

Imagine: you’re a non-citizen sitting before an immigration judge, waiting to hear if the burglary you just committed means you’re going to be deported.  Then imagine your lawyer told you your chances of deportation hinge on how the immigration judge defines “moral turpitude.”

I know, right?

“Moral Turpitude”

It sounds bad, huh?  Well, it’s not “meaningless,” as Judge Posner of the Seventh Circuit claimed.  Arias v. Lynch (2016).  Rather, it has many meanings, depending on which federal circuit court of appeals you ask.  Everyone recognizes that immigration law is hard.  It’s hard because you’re dealing with humans and oftentimes making decisions that have profound effects on the lives of these humans. (Thank goodness other practices of law don’t have these issues, too.)

It’s very important that our courts come to a consensus about what exactly moral turpitude means.  A lack of agreement means that a non-citizen in Illinois might be deported for the same crime that a non-citizen in Texas wasn’t deported for.  This is kind of a big deal, constitutionally speaking, because due process, equal protection, life, liberty—I think you get the point. 

The Split

The circuits are split between a two-step test and a three-step test.

The Third, Fourth, Fifth, Ninth, and Eleventh Circuits follow the two-step test, as described in Prudencio v. Holder (4th Cir. 2012):

  • (1) “[W]e first apply the categorical approach…This analysis requires that we examine the statutory elements of the crime, and not consider the facts or conduct of the particular violation at issue.”
  • (2) “[If] the categorical approach does not resolve our inquiry… we proceed under the modified categorical approach… Under the modified categorical approach, we review the record of conviction to determine whether the crime of which [the defendant] was convicted qualifies as a crime involving moral turpitude.”

The Seventh and Eighth Circuits follow the three-step test, as descried in Mata-Guerrero v. Holder (7th Cir. 2010):

  • (1) “First, the immigration judge should focus on the statute’s actual scope and application and ask whether, at the time of the alien’s removal proceeding, any actual (not hypothetical) case existed in which the statute was applied to conduct that did not involve moral turpitude, including the alien’s own conviction….
  • (2) “If that evaluation of a “realistic probability” does not resolve the question, the judge should proceed to a “modified categorical” approach, examining the record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or a guilty plea transcript….
  • (3) “Then, where those records of conviction also fail to shed light on the question, the Attorney General instructs that the immigration judge should consider any evidence beyond those records “if doing so is necessary and appropriate to ensure proper application of the Act’s moral turpitude provisions.”

Why This Matters

For non-citizens, this split can be the difference between staying in the country or being deported. Consider the Arias case linked above. In the case, the non-citizen was charged with falsely using a social security number in order to find work. The Seventh Circuit had not decided prior whether such a violation constituted moral turpitude. It noted, however, that the circuits were split on the matter:

The Fifth and Eighth Circuits have said yes (including opinions regarding the closely related subparagraph, § 408(a)(7)(A)). Guardado‐Garcia v. Holder, 615 F.3d 900, 901–02 (8th Cir. 2010); Lateef v. Department of Homeland Security, 592 F.3d 926, 929 (8th Cir. 2010) (§ 408(a)(7)(A)); Hyder v. Keisler, 506 F.3d 388, 392 (5th Cir. 2007) (§ 408(a)(7)(A)). The Ninth Circuit has said no. Beltran‐Tirado v. I.N.S., 213 F.3d 1179, 1184 (9th Cir. 2000).

Circuits are split not just on how to define moral turpitude, but on what crimes even constitute moral turpitude. This is an obvious consequence of a system of law that requires a phrase as empty as “moral turpitude” to bear a Sisyphean load. And remember: the Fifth and Ninth Circuits use the same test to define moral turpitude—that those circuits cannot decide on what crimes constitute moral turpitude underscores just how entangled and ill-defined the law has become.

Looking Forward

For a legal system that fetes both equality and predictability, the fact that neither non-citizens nor the State knows what the exact consequences are when a crime is committed is nonsensical and illogical. Non-citizens should have the heads up as to what will occur if they commit a crime.  Part of this includes defining, once and for all, what our law means by “moral turpitude.” And, if we can’t, maybe it’s time we cut the turpitudinous knot.