Treating Similarly Situated Employees the Same

We always preach, in the discrimination law field, that like employees must be treated alike. One way for an employee to get to a jury (and persuade the jury that discrimination was afoot) is to draw a comparison between the employee and one or more employees of a different class who engaged in nearly identifical conduct (or performance). We call this comparing "similarly situated" employees. In otherwords, it really doesn't matter to a court or a jury that the fired employee stole from the company if others of a different race (sex, age bracket, etc.) were known to have stolen the same thing without consequence.

How you measure who is similarly situated is vital, and worth some thought, as the court of appeals in Chicago (governing Illinois, Indiana and Wisconsin) pointed out in a decision today against Sears.

Sears fired a store manager for poor performance. She brought an age claim saying Sears didn't fire other store managers for poor performance. The court rejected the premise of her argument, holding that she was, in fact, the poorest performer of the lot over the longest time period. The court also, however, reminded readers that when there are several comparators (those to whom the employee compares herself) picking and chosing amongst them, isn't proper. Suppose, in the set of comparators who perform about at the same level, some older workers fared better than the fire employee but some others fared worse, in terms of the consequences of their poor performance. The court explained it as follows:

A pattern where the protected-class members “sometimes do better” and “sometimes do worse” than their comparators is not evidence of age discrimination. Cf. Bush v. Commonwealth Edison Co., 990 F.2d 928, 931 (7th Cir. 1993) (“Such a pattern, in which blacks sometimes do better than whites and sometimes do worse, being random with respect to race, is not evidence of racial discrimination.”).

What really persuaded the court was the way Sears objectively quantified store performance data (tracking, on a monthly basis, the store's customer satisfaction, personnel data, sales, and profits). Sears then added colored this evidence with two anecdotal examples of the plaintiff's poor performance. This made it very easy for the court to see that the plaintiff was, in fact, the poorest performing store manager.

The lesson about treating nearly identical conduct (or performance) the same still holds true. The court simply recognized that some level of variation is inevitable in dealing with groups of people and the employer's treatment of the whole group is what determines whether the employer made biased decisions.

The other equally important lesson is that an employer who fires an employee based only upon a subjective belief that the employee is the poorest performer is much less likely to fare as well in court as an employer who works objective factors into the decision. The "shoot from the hip" employer might win nevertheless, but so too might I win the lottery. The odds are against it.