Mopping Up the Mess: a Call to Adopt the Seventh Circuit's Standard for Assessing Comparator Evidence in Title Vii Discrimination Claims

• Publication year: 2021

Mopping up the Mess: A Call to Adopt the Seventh Circuit's Standard for Assessing Comparator Evidence in Title VII Discrimination Claims

Alexander S. Edmonds
University of Georgia School of Law

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MOPPING UP THE MESS: A CALL TO ADOPT THE SEVENTH CIRCUIT'S STANDARD FOR ASSESSING COMPARATOR EVIDENCE IN TITLE VII DISCRIMINATION CLAIMS

Alexander S. Edmonds^*

In McDonnell Douglas Corp. v. Green, the U.S. Supreme Court developed a framework to assist courts in assessing individual disparate treatment claims based on circumstantial evidence. Under that test, plaintiffs alleging discrimination under Title VII must first show a prima facie case of discrimination. Since McDonnell Douglas, courts have modified the test by requiring plaintiffs to demonstrate that they were treated less favorably than a similarly situated comparator employee who is outside the plaintiff's protected class. Courts disagree, however, on what it means for employees to be similarly situated. Some courts strictly interpret the similarly situated requirement; others caution against an overly mechanical approach and employ a flexible standard instead. As a result, a plaintiff could successfully plead a prima facie case of discrimination in one federal circuit but fail in another. To resolve this disparity, this Note proposes that the U.S. Supreme Court adopt the Seventh Circuit's standard for comparator evidence due to its consistency with the Court's precedent, its cohesion with the purposes underlying Title VII, and its practical benefits for plaintiffs alleging a prima facie case of employment discrimination.

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Table of Contents

I. Introduction....................................................................913

II. The Evolution of the "Similarly Situated" Requirement..................................................................915

A. Individual Disparate Treatment Claims And The Mcdonnell Douglas Paradigm............................915
B. The Development of Comparator Evidence......918

III. The Circuit Split on the Standard for Comparator Evidence........................................................................919

A. The Seventh Circuit's "Not Useless" Standard . 919
B. The Eleventh Circuit's "Material Respects" Standard................................................................922
C. Different Applications of "Material Respects" ................................................................................925

IV. The Case for the Seventh Circuit's Standard for Comparator Evidence........................................................928

A. Consistency with U.S. Supreme Court Precedent ................................................................................928
B. Practical Benefits of The Seventh Circuit's Standard................................................................931

1. Imposing Practical Burdens on Plaintiff-Employees ........................................................932
2. Reserving Discretion for Employers' Business Decisions..........................................................932
3. Allowing for Flexible Review of Dissimilar Fact Patterns............................................................ 933

V. Conclusion......................................................................934

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I. Introduction

Title VII of the Civil Rights Act prohibits employers from discriminating against their employees or job applicants based on "race, color, religion, sex, or national origin."¹ Before Title VII was enacted, many states allowed companies to lawfully discriminate against employees based on these traits,² so in the early days of Title VII litigation, plaintiffs could often use direct evidence to prove their allegations of discrimination.³ However, as employers began to eliminate discriminatory policies, direct evidence of discrimination became less available.⁴ As a result, plaintiffs began to rely on circumstantial evidence, or evidence that supports the inference of discrimination, rather than direct proof of discrimination.⁵ In McDonnell Douglas v. Green,⁶ the U.S. Supreme Court provided a three-part test to assist courts in evaluating claims of discrimination based on circumstantial evidence.⁷ First, the plaintiff must show a prima facie case of

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discrimination.⁸ If the plaintiff is successful, the employer must then provide a "legitimate, nondiscriminatory reason" for the adverse employment outcome.⁹ If the employer does so, then the plaintiff may respond by showing that the employer's proffered reason is pretext for discrimination by the employer.¹⁰

In McDonnell Douglas, the Court acknowledged that lower courts might need to adjust the requirements of a prima facie case since the facts of each employment discrimination case "will vary."¹¹ In response, lower courts have often required plaintiffs to establish that a "similarly situated" employee outside the plaintiff's protected class was "treated more favorably."¹² However, circuit courts are widely split on what constitutes a "similarly situated" comparator employee. Standards vary from "nearly identical"¹³ to "flexible[ and] common-sense"¹⁴ to "similarly situated in all material respects."¹⁵ Indeed, the standard for evaluating comparator evidence is perhaps best explained by the Eleventh Circuit's recent and eloquent summary: "It's a mess."¹⁶

In Lewis v. City of Union City, the Eleventh Circuit attempted "to clean up" the mess by developing a new test for evaluating comparator evidence presented during the plaintiff's initial burden of proof under the McDonnell Douglas test: whether the plaintiff and the proffered comparators are "similarly situated in all material respects."¹⁷ In doing so, the court explicitly rejected both

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its own "nearly identical" standard and the Seventh Circuit's standard,¹⁸ which finds a comparator sufficient as long as the distinctions between the plaintiff and the proposed comparators are not "so significant that they render the comparison effectively useless."¹⁹ The Eleventh Circuit correctly recognized the need for a clear, uniform standard for comparator evidence; unfortunately, it chose the wrong one.

In Part II, this Note further discusses the McDonnell Douglas burden-shifting analysis of Title VII employment discrimination claims and the "similarly situated" requirement of a prima facie case. In Part III, this Note reviews the Seventh and Eleventh Circuit standards for evaluating comparator evidence at the first step of the McDonnell Douglas analysis. Finally, in Part IV, this Note argues that the Seventh Circuit standard is a better approach to comparator evidence because it is a more practical and consistent application of U.S. Supreme Court precedent regarding how courts should treat employment discrimination claims at the summary judgment stage.

II. The Evolution of the "Similarly Situated" Requirement

A. Individual Disparate Treatment Claims And The Mcdonnell Douglas Paradigm

Congress enacted Title VII to prohibit employers from discriminating against their employees on the basis of "race, color, religion, or national origin."²⁰ The law's purpose, according to the U.S. Supreme Court, is "to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of . . . employees over other employees."²¹ Accordingly, under Title VII, it is unlawful for an employer:

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(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.²²

Employees can bring a Title VII discrimination claim under two different theories: disparate treatment or disparate impact.²³ These two categories of claims each impose different burdens on plaintiffs. In disparate impact (or non-intentional discrimination)²⁴ employment claims, plaintiffs must show that a facially neutral policy adversely affects a statutorily protected group of which the plaintiff is a member.²⁵ On the other hand, a plaintiff alleging disparate treatment "must show that the employer engaged in intentional discrimination."²⁶ Plaintiffs can prove intentional

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discrimination "by producing direct evidence or circumstantial (indirect) evidence."²⁷ However, employment discrimination plaintiffs rarely can show intentional discrimination with direct evidence;²⁸ thus, the majority of plaintiffs rely on circumstantial evidence to prove intent.²⁹

Recognizing this problem, the U.S. Supreme Court, in McDonnell Douglas Corp. v. Green,³⁰ developed a three-part burden-shifting analysis that plaintiffs could use to bring employment discrimination claims without direct evidence of discriminatory intent.³¹ The first part of the analysis requires that plaintiffs plead a prima facie case of racial discrimination

by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.³²

If the plaintiff establishes this prima facie case, the burden then shifts to the employer to produce a "legitimate, nondiscriminatory

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reason for the employee's rejection."³³ If the employer can articulate such a reason, the burden shifts back to the plaintiff "to demonstrate that [the employer's] assigned reason for refusing to re-employ was a pretext or...