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The Legal Corner - John Hagan, Hagan Law Group

March 2023


One thing most people overlook is that legal employment discrimination occurs every day.  When you promote a high performer for a job well done, you are technically, discriminating against lower performers.  This discrimination is legal, however, because the promotion - and consequent lack of promotions for the other employees - is based upon superior performance.  Superior performance is not a protected category under any federal, state or local law I know of.


Illegal discrimination, on the other hand, occurs when one employee is treated less favorably than another employee based upon the employees’ protected category or protected conduct.  But before the employee who thinks she has been discriminated against, she must prove that the other employee, who is a similarly situated comparator, was treated more favorably based upon his protected category or conduct. 

It can be very difficult to establish who is a good comparator to the employee who feels discriminated against. Eric Kelley, an African American who was a delivery driver for United Parcel Service (UPS), felt he had been discriminated against. 

After a long day, Kelley's supervisor assigned him one more delivery.  The UPS facility had already closed and so Kelley had to wait outside for the package to be delivered so that he could deliver it to the end recipient.  Kelley complained because he did not think it was safe to wait outside of the facility, and so his supervisor fired him for insubordination.  The supervisor then sought volunteers to do the shuttle run.  A Caucasian driver turned down the assignment and was not fired.

Kelley sued UPS for illegally discriminating against him when it fired him for refusing to do the shuttle run but not firing the Caucasian driver.  Kelley lost the lawsuit because Kelley could not prove that the Caucasian driver was similarly situated to him.  Therefore, there was no comparator, which meant there was no basis for a lawsuit. 

The court wrote that a valid comparator had to be “similar in all relevant respects,” including dealing with the same supervisor, being subject to the same standards, and engaging in the same conduct without any differentiating or mitigating circumstances.  The Court found that Kelley and the Caucasian drive were not valid comparators because they did not engage in the same conduct.  Kelley was given an assignment that he refused, so he was fired for insubordination.  The Caucasian driver was offered a voluntary opportunity to do additional work and he turned it down.  Rejecting a voluntary opportunity is entirely different from refusing an assignment.

If you are considering making an employment decision that subjects employees to different outcomes for apparently similar conduct, stop and think about whether those employees are comparators to themselves.  Are they similarly situated?  Do they fall into different protected categories, or have some of them engaged in protected conduct while others have not?  Lots to consider, but hey, that is why you get the big bucks! 

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