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Unlawful discrimination ultimately is about being treated less favorably because of race, religion, national origin, age, sex or other illegal factors. One way to prove unlawful discrimination is to show the person has been treated less favorably than a “similarly situated” co-worker. International Brotherhood of Teamsters v. U.S., 431 U.S. 324 (1977), is the seminal case outlining claims of “disparate treatment.” As the Supreme Court noted, this is the most easily understood type of discrimination.
How does one prove “disparate treatment”? Typically, one looks at whether or not the Plaintiff in the action is treated differently than someone “similarly situated.” Who is “similarly situated”? Does one look at all of the employees of the company, all the employees in a particular division, or only those employees supervised by the same supervisor?
The Sixth Circuit, in Louzon v. Ford Motor Company, No. 11-2356 (June 4, 2013), reiterates the analysis to be performedin a discrimination lawsuit as to who is a “similarly-situated” comparator for purposes of determining whether a Plaintiffis “similarly situated” to those claimed to be morefavorably treated by the employer.
In Louzon, the Plaintiff was a product engineer at Ford. Plaintiff took an approved leave of absence to visit relatives in Gaza. Louzon was then stranded in Gaza and requested an extended leave of absence.Ford extended the leave of absence, but by the time the Plaintiff could return to the United States, the extension had expired and Ford terminated Louzon. Louzon filed a national-origin discrimination lawsuit against Ford. At issue was who were Louzon’s“similarly situated” co-employees. The Trial Court ruled that the comparative employees must share the same supervisor. The Sixth Circuit reversed. The Sixth Circuit determined that it was important to look at multiple supervisors and employees to determine who was similarly situated to the Plaintiff employee. Louzon was one of 5,000 product engineers reporting to more than 300 managers and even fewer supervisors. The Sixth Circuit referred back to its analysis in Bobo v. United Parcel Service, Inc., 665 F. 3d 741, 751 (6th Circuit, 2012), noting that,“factors to be considered include whether the individuals dealt with the same supervisor, were subject to the samestandards, and engaged in the same conduct without differentiating or mitigating circumstances that would distinguish their conduct or their employer’s treatment of them for it.” A Court, “should make an independent determination as to the relevancy of the particular aspect of the Plaintiff’s employment status and that of the non-protected employee.”
Consequently, how a Court defines who is “similarly situated” is a key determination in defense of a discrimination lawsuit. The “similarly situated” employee may have the same supervisor, but depending on the circumstances of the position, there may also be other “similarly situated” employees. One should analyze whether there are other employees whoengaged in the same conduct, their positions and whether they were subject to the same standards.
In summary, in analyzing the potential risk for lawsuit on a discrimination claim, don’t limit your inquiry of “comparable conduct” to those employees with the same supervisor.
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About the Author
Felix Gora is an Ohio State Bar Association Certified Specialist in Labor and Employment law. His practice is concentrated in theareas of employment, insurance, civil rights, personal injury, appellate, and aviation law. Felix’s appellate court background is a keyfactor in his selection to handle some of the most difficult procedural issues in litigation.
FGora@Rendigs.com | (513) 381-9278

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