Employee Need Only Show that Comparator Engaged in Similar – Not the Same – Misconduct

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The U.S. Court of Appeals for the 6th Circuit emphasized that, while a plaintiff alleging discriminatory discipline must show that comparators received more favorable treatment, the misconduct need not be identical for purposes of comparison.

In Spratt v. FCA US LLC, an African-American buyer falsified an initial bid summary, which he then corrected on the final bid summary sheet. He was terminated for his conduct. In his lawsuit against the employer for race discrimination, he pointed to a white buyer who had conspired with a supplier to receive kickbacks. The white buyer was removed from his role, but reassigned to a higher-level position.

The company argued that the employees had engaged in different misconduct, and thus were not comparable. The 6th Circuit, however, held that “the relevant inquiry is whether the comparator’s conduct was substantially identical `in all of the relevant aspects,” which includes “the type of misconduct involved and its relative severity.” In this case, the 6th Circuit found the two employees engaged in the same type of misconduct, implicating serious concerns of ethics and trust. The 6th Circuit further found the circumstances to be the same, as both violated well-known company policies. Additionally, a jury could find the wrongdoing to be of comparable seriousness, based on the actual and potential harm to the company.

The 6th Circuit rejected the company’s contention that the African-American buyer had violated more policies, noting that pretext for discrimination could be found where the same underlying misconduct was “inexplicably” divided into multiple violations instead of a single violation. In addition, “the relative severity of two actions is not determined solely by whether those actions violated the same company rule or policy.” Thus, in reviewing discipline to ensure consistency, employers must be mindful to compare the underlying misconduct to instances beyond the exact same violations.