Using Comparator Analysis to a Company’s Advantage

By KENNETH S. WILLIAMS

be shown to be similarity situated in all relevant and material respects, engaging in acts of comparable seriousness. Superficial similarity of employees, standing alone, will be insufficient to carry the employee’s burden of proof.

Comparisons of unlike things, such as one employee’s theft being compared to another’s attendance violations, are obviously dissimilar. Other comparisons will require a more detailed analysis, and various factors are considered in evaluating similarities between employees. These include whether the comparators engaged in the same conduct, dealt with the same or a different supervisor, or were held to the same or differing standards of conduct. The degree and type of misconduct by comparators is also important, and the misconduct must be sufficiently similar in both type and degree. Other differentiating or mitigating circumstances are also examined which might distinguish conduct between comparators, such as differences in job titles or responsibilities, work experience, and past work and disciplinary records. Conduct standards for a manager, for example, are likely dissimilar when compared to an assistant manager or hourly worker. A comparator’s disciplinary warnings or negative performance reviews, standing alone, are probably insufficient to show substantial similarity in the absence of similar work issues. Whether or not the employee was on probation when the comparator was not is a consideration as well. For workplace safety violations, comparators may be dissimilar if the employee risked injury to others but the comparator only risked injury to himself or herself, if one injury risk is minor compared to the other, and when repeat safety violations are contained in the employee’s file but are absent in the comparator’s file.

Comparator analysis can be fact intensive. The employee bears the burden of proof at the prima facie stage and will likely present one or more comparators to show less favorable treatment. Because of its workplace familiarity, a company’s human resource team plays an important dual role in any comparator analysis. For the employee’s comparators intended to show less favorable treatment, the human resources team can assist counsel by flagging dissimilar facts and characteristics distinguishing comparators. Equally important is the ability of the human resources team to ferret out and locate other workplace comparators, who can be used by counsel to show consistency and equality of treatment across age, sex, race, or other classes.

Comparator analysis, of necessity, involves the use of employment records of other past and present employees. For that reason, it is crucial to recognize the value of documenting all factors relevant and considered in decisions to hire, fire or discipline. A proper paper trail showing consistency of treatment is a great tool for counsel, the court, and a jury. The company should always strive for consistent and evenhanded treatment of all employees across all classes because the strength or weakness of any comparator analysis correlates to the equality of treatment in the workplace.

Kenneth S. Williams kwilliams@wimberlylawson.com Cookeville Office Of Counsel