In civil rights litigation, comparator evidence faces greater barriers to admissibility than any other type of circumstantial evidence. Discrimination plaintiffs introducing comparator evidence are often required to prove that they are similarly situated in “all relevant respects” to the suggested comparator. However, the Supreme Court has rejected this difficult type of standard, as it makes the anti-discrimination laws “inoperable.” Miller-El v. Dretke, 545 U.S. 231, 247 n.6 (2005). Rather, the Supreme Court has welcomed circumstantial evidence using reasonable comparisons that preserve the purpose of civil rights laws.
The “all relevant respects” test is the type of categorical rule that the Supreme Court rejected in Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387-388 (2008) (employees supervised by different managers in different departments may be similarly situated). The Supreme Court has clarified that proof of discrimination does not “require the plaintiff to show that those whom the employer favored and those whom the employer disfavored were similar in all but the protected ways.” Young v. United Parcel Service, 575 U.S. 206, 228 (2015).
The “all relevant respects” standard is illogical in that it may require the plaintiff to be comparable on factors that the employer did not rely on to distinguish the plaintiff against comparators. In recent years, some courts have moderated their approach to comparator evidence. This article will demonstrate that the “all relevant respects” standard is improper, and will suggest an alternative based on ordinary benchmarks for admissibility: “The plaintiff must show herself to be similar to one or more comparators in enough respects such that her situation can reasonably be compared to theirs.”
One type of evidence used to prove employment discrimination is that the plaintiff-employee was treated differently than other similarly situated employees who are outside the plaintiff’s protected class. For example, a Black employee may demonstrate bias by showing that similarly situated white employees (aka “comparators”) were treated better. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805 (1973); Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 228 (1978).
Although such evidence is not required to prove discrimination, comparator evidence can be important and probative. Trustees of Health & Hosps. of Boston Inc. v. Massachusetts Comm’n Against Discrimination, 449 Mass. 675, 682-683 (2007); Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 38 (1st Cir. 2003).1 Comparator evidence may be used as an element of the plaintiff’s prima facie case (Trustees of Health, 449 Mass. at 682), or to demonstrate that the employer’s articulated reason for discharge is pretextual. Matthews v. Ocean Spray Cranberries Inc., 426 Mass. 122, 130 (1997).
Where statutes fail to define the standard, courts have struggled to identify a clear benchmark for comparator evidence.2 On the one hand, courts have recognized that,
“[m]embership in the protected class aside, a comparator’s circumstances need not be identical to those of the complainant.” Trustees of Health, 449 Mass. at 682. “The test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated . . . . Exact correlation is neither likely nor necessary, but the cases must be fair congeners.” Id.; Velez v. Thermo King de Puerto Rico, 585 F.3d 441, 451 (1st Cir. 2009). Notions of fairness and reasonableness appropriately control this analysis. See Conward v. Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999) (“reasonableness is the touchstone”).
On the other hand, the Supreme Judicial Court of Massachusetts has adopted other features of the federal standard, without analysis, requiring that the plaintiff “identify and relate specific instances where persons similarly situated ‘in all relevant aspects’ were treated differently.” Matthews, 426 Mass. at 130, quoting Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989) (applying 42 U.S.C. § 1981), quoting Smith v. Monsanto Chem. Co., 770 F.2d 719, 723 (8th Cir. 1985), cert. denied, 475 U.S. 1050 (1986); see also Ayala-Sepulveda v. Municipality of San German, 671 F.3d 24, 32 (1st Cir. 2012) (Equal Protection standard).
Cases also refer to this requirement as “all relevant respects,” which is an equivalent standard. Acevedo-Parrilla v. Novartis Ex-Lax Inc., 696 F.3d 128, 144 (1st Cir. 2012).3 Under this “all relevant respects” test, the plaintiff must identify other employees to whom she is similarly situated in terms of performance, qualifications and conduct, without differentiating or mitigating circumstances that would distinguish their situations. Matthews, 426 Mass. at 130; Rodriguez-Cuervos v. Wal-Mart Stores Inc., 181 F.3d 15, 21 (1st Cir. 1999). As will be shown, the standards contained in this paragraph should be rejected. In 2015, the Supreme Court rejected the argument that comparators must be similar in all ways. Young, 575 U.S. at 228. As this article will demonstrate, the “all relevant respects” burden is absurdly high, inconsistent with other holdings, contradicts basic notions of evidence, and is incompatible with fundamental laws guaranteeing equality and civil rights.
'All Relevant Respects’ is too broad
A requirement for a comparator to share circumstances in all relevant respects with the plaintiff creates a higher test for admissibility than is applied to other types of proof of bias. In no other context is circumstantial evidence considered through such a strict test as comparator evidence.
Certainly, a comparator should be similar to the plaintiff in some material respects. However, there is no basis in the rules of evidence or Supreme Court precedent to demand that the comparator be similar in the entire universe of relevant factors. Fed. R. Evid. 401 (fact is relevant if it is of consequence in the action and “has any tendency to make [the] fact more or less probable”). In an area of the law where the totality of circumstances controls, establishing alignment in every single relevant respect is unrealistic. Moreover, a categorical rule permits employers to avoid comparator evidence by “fishing” for a distinguishing factor, or combination of factors, at the time of the adverse action. See Tennial v. United Parcel Serv. Inc., 840 F.3d 292, 304 (6th Cir. 2016) (explaining that “[d]ifferences in experience and disciplinary history” can disqualify a plaintiff’s proffered comparators). Such a standard risks making the discrimination laws “inoperable.” Miller-El, 545 U.S. at 247 n.6.
Perfection — a perfect fit between evidence and the fact sought to be proven — has never been required for any type of circumstantial evidence, which, by its nature, generates an inference through indirect methods. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714 n. 3 (1983) (“The trier of fact should consider all the evidence, giving it whatever weight and credence it deserves”). Intent is demonstrated from “all the attending circumstances.” Gallotti v. United States Trust Co., 335 Mass. 496, 501 (1957) (action for fraud). The admissibility of circumstantial evidence is considered in the light of the entire case and whether it forms the basis for reasonable inferences. Cummings v. Std. Register Co., 265 F.3d 56, 63 (1st Cir. 2001).
Circumstantial evidence of discrimination is routinely admissible, despite a lack of correlation on all fours with the claim at issue. Evidence of a discriminatory atmosphere at work is admissible even if it can merely add “color” and context to an employment controversy. Conway v. Electro Switch Corp., 825 F.2d 593, 597 (1st Cir. 1987); Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 686 (2016). “[E]vidence of a corporate state-of-mind or a discriminatory atmosphere is not rendered irrelevant by its failure to coincide precisely with the particular actors or timeframe involved in the specific claim that generated a claim of discriminatory treatment.” Cummings v. Std. Register Co., 265 F.3d 56, 63 (1st Cir. 2001).
For example, discriminatory remarks are considered, even if they are not linked to the decision to terminate the plaintiff. Reeves, 530 U.S. at 152.4 A jury may consider the fact that an employer condoned the distribution of racist literature, having nothing to do with the plaintiff. Bulwer, 473 Mass. at 686. An employer’s conduct occurring years after the event, which is not directed at the plaintiff, may assist the plaintiff in proving discrimination. Brown v. Trustees of Boston Univ., 891 F.2d 337, 350 (1st Cir. 1989). An employer’s “general practices” with respect to its treatment of minorities are considered, even if there is no specific connection to the plaintiff’s situation. Abramian v. Pres. & Fellows of Harv. Coll., 432 Mass. 107, 112, 114 (2000) (where the plaintiff was harassed because of his Russian background, evidence that others were harassed based on Portuguese, Spanish and Italian heritage was considered); see also International Bhd. of Teamsters v. United States, 431 U.S. 324, 334-338 (1977) (pattern and practice case involving company-wide practices across a range of employment practices). It is difficult to square a demanding standard for comparator evidence with the broad scope of other evidence that is often permitted.
Use of the “all relevant respects” standard at summary judgment is problematic, as it gives weight to factors that a jury could later find did not motivate the disparate treatment. Reeves, 530 U.S. at 151 (evidence favoring the employer is disregarded at summary judgment, including the testimony of witnesses with an interest in the litigation); see, e.g., Carter v. Pulaski Cty. Special Sch. Dist., 2020 U.S. App. Lexis 13199 (8th Cir.), at 5-6 (accepting employer’s asserted reasons for disparate treatment — that cheer team supervised by plaintiff had low attendance and engaged in misconduct, despite the fact that employer renewed plaintiff’s contract after such problems emerged). For example, if two employees are caught stealing, but one is fired while the other is suspended, a jury might well conclude that notionally relevant distinctions, such as differing levels of seniority or responsibility, do not explain the different job actions. The Court should not accept, at the Rule 56 stage, the employer’s self-serving declarations that a certain factor was relevant. Reeves, 530 U.S. at 151.
Moreover, use of the “all relevant respects” standard at trial may be seriously misleading to jurors, as it could lead them to focus inappropriately on factors that did not actually have effect.5
It is unclear why corporate atmosphere evidence is admissible to add color and context, but comparator evidence must be related in all factors. There is simply no evidentiary analogue that validates the notion that circumstantial evidence is appropriate only where the context mirrors the claim in “all relevant respects.” Furthermore, there is no reason why comparator evidence should be treated differently than other kinds of circumstantial evidence.
'All Relevant Respects’ is a categorical rule that improperly replaces normal evidentiary standards
Normal rules of evidence should govern the acceptance of comparator evidence, and categorical rules limiting its use ought to be rejected. The requirement for commonality in “all relevant respects” is the type of per se rule that the Supreme Court has expressly rejected.
In Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379 (2008), the plaintiff sought to prove age discrimination, in part, by showing that other older employees who worked in different departments and under different managers were also subjected to age discrimination. The District Court rejected the evidence, on the grounds that the other victims of discrimination were not similarly situated to the plaintiff, based on the fact that different decision-makers were involved. Id., at 382. The District Court was unclear in explaining whether it excluded the evidence based on a balancing approach, or whether it had applied a categorical rule that those reporting to different supervisors could never be compared. Id., at 386.
The Supreme Court held that the questions of admissibility are governed by the familiar principles contained in Federal Rules of Evidence 401 and 403, and that such determinations are generally not amenable to broad per se rules. Sprint, 552 U.S. at 384, 387. Evidence is relevant if it “has any tendency to make a fact more or less probable.” Fed. R. Evid. 401(a). Assessing evidence under that broad standard requires a weighing of factors through use of sound judgment. Sprint, 552 U.S., at 384. To the extent that the District Court utilized a categorical rule that employees under different supervisors are never similarly situated, the Supreme Court found that the District Court abused its discretion when excluding the evidence.” Id. at 387.
The Supreme Court concluded that “the question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” Sprint, 552 U.S. at 388. In other words, discrimination by other decision-makers, in different departments and under different chains of command, may be admissible, and all the victims of discrimination in the various departments may be similarly situated. Id. However, if that is true, then comparators need not be similarly situated in “all relevant respects,” as having the same supervisor is certainly a relevant factor in comparing different employees facing termination. Thus, the Supreme Court has rejected categorical rules such as the “all relevant respects” test.
Sprint is controlling. However, many cases embracing strict limits to comparator evidence do so without validating those limits in light of the Sprint decision. E.g., Lewis v. City of Union City, 918 F.3d 1213, 1231 (11th Cir. 2019) (adopting “all material respects” test, without considering the Sprint ban of categorical standards).
A number of federal decisions have rejected the 'all revelant respects' test
A number of courts have rejected the “all relevant respects” test, and others have distanced themselves from it.
The Supreme Court rejected a similar standard in a 2015 case involving an employer’s refusal to accommodate pregnant women the same as it accommodated workers who had suffered on-the-job injuries. Young, 575 U.S. at 228-30 (Pregnancy Discrimination Act). In that case, the Court stated that a prima facie case of discrimination need not include proof “that those whom the employer favored and those whom the employer disfavored were similar in all but the protected ways.” Id. at 228 [emphasis added]. The Supreme Court rejected the “all.” In more practical terms, the Supreme Court held that a genuine issue of material fact existed as to whether pregnant employees could be reasonably considered similar to other employees who needed accommodations, including those who experienced on-the-job injuries, those who were injured off the job, those for whom it was unclear where they were injured, and those who sought reasonable accommodations under the Americans with Disabilities Act. Id., at 216-17, 230-31. Young was permitted to compare herself to groups of people who were objectively in different categories based on relevant factors. Id.
Moreover, the Supreme Court has rejected the “in all respects” standard in Miller-El v. Dretke, 545 U.S. at 247 n.6, in a case applying the Equal Protection Clause of the United States Constitution. Miller-El considered the validity of comparator evidence to determine whether Black jurors were subject to preemptory challenge based on their race.
None of our cases announces a rule that no comparison is probative unless the situation of the individuals compared is identical in all respects, and there is no reason to accept one. [emphasis added].
Id. The majority in Miller-El expressly rejected the view of the dissent, which would have required that the white and Black jurors be similar with respect to every reason for striking raised by the prosecution (in other words, every relevant reason articulated by the prosecutor for challenge). Miller-El, 545 U.S. at 247 n.6 & 291. The Supreme Court held that the adoption of such a rule requiring that comparisons be based on “all” criteria relied upon by the prosecution would make the law against discrimination “inoperable.” Id. The white and Black jurors were held to be comparable, despite a variety of differences. Id., at 247. Thus, while Miller-El rejects an “all respects” test as opposed to the “all relevant respects” test, it clearly is addressing the “all relevant respects” test by implication. Id., at 247 n.6.
Significantly, the United States Supreme Court has never adopted the “all relevant respects” test, despite the fact that it has issued a number of cases considering comparator evidence. The Court in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283-85 & n.11 (1976), stated, “precise equivalence . . . between employees is not the ultimate question.” The touchstone of the similarly situated inquiry is simply whether the employees are “comparable.” McDonnell Douglas, 411 U.S. at 804 (comparisons of employees whose misconduct was “of comparable seriousness”); see also Young, 575 U.S. at 228, 230; Sprint, 552 U.S., at 387-388.
The stringent language in Massachusetts case law (first adopted in Matthews, 426 Mass. at 130) was borrowed from the First Circuit decision of Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989), overruled on other grounds by Educadores Puertoriquenos en Accion v. Hernandez, 367 F.3d 61 (1st Cir. 2004). Dartmouth Review addressed a discrimination case arising between organizations under 42 U.S.C. § 1981, and did not address employment discrimination under M.G.L. ch. 151B. The First Circuit adopted the “all relevant respects” language to “put flesh” on the bones of the notion that evidence of past treatment toward others similarly situated can be used to demonstrate intent in a race discrimination suit. Id.
Some decisions have moved on from the strict language in Dartmouth Review. For example, the First Circuit sometimes describes the plaintiff’s burden as showing that a “proposed analogue is similarly situated in material respects.” Velez, 585 F.3d at 451; Tsai v. McDonald, 2017 U.S. Dist. Lexis 130280 (D. Mass.), at 19-20. This is a much more reasonable burden, as it focuses on the need for comparable circumstances, without implying that the circumstances must be the same for every single relevant factor. Therefore, even if a state court were inclined to follow federal precedent, not all federal courts have embraced the “all relevant respects” test.
The case of Humphries v. CBOCS West Inc., 474 F.3d 387 (7th Cir. 2007), aff’d 553 U.S. 442 (2008), likewise moved away from the strict burden, which considers, but does not require identity with, all relevant factors:
we have emphasized that the similarly situated inquiry is a flexible one that considers all relevant factors, the number of which depends on the context of the case. . . .
. . . . .
. . . courts should apply a “common-sense” factual inquiry — essentially, are there enough common features between the individuals to allow a meaningful comparison? . . .
. . . . .
. . . the fundamental issue remains whether such distinctions are so significant that they render the comparison effectively useless. In other words, the inquiry simply asks whether there are sufficient commonalities on the key variables between the plaintiff and the would-be comparator to allow the type of comparison that, taken together with the other prima facie evidence, would allow a jury to reach an inference of discrimination or retaliation.
Id., at 405. [internal quotes removed]. There is a difference between the requirement to identify “persons similarly situated in all relevant respects” and the Humphries flexible version that merely considers “all relevant factors.” Humphries requires similarity, not for all relevant factors, but simply “enough common features” and “sufficient commonalities” as to be useful and to support reasonable inferences. This is a logically tenable description of the standard, as anything more removes reliable information from consideration and constitutes an improper per se rule.
In Alexander v. Fulton County, 207 F.3d 1303, 1333 (11th Cir. 2000), the Court upheld a jury instruction that permitted the jury to find discrimination where “another similarly situated employee, who is not a member of the protected group, was not treated in a similar manner.” The Court found that the phrase “similarly situated” is the correct term of art to use with the jury, and rejected the employer’s demand for a more confining gloss on the standard. Id., at 1333-34.
Massachusetts has also moved away from “all relevant respects,” as the Supreme Judicial Court has failed to invoke it since 2007, despite having considered comparator evidence on numerous occasions. See Yee v. Massachusetts State Police, 481 Mass. 290, 294, 301 (2019); Verdrager v. Mintz, Levin, 474 Mass. 382, 398 (2016); Bulwer, 473 Mass. at 685-86; Haddad v. Wal-Mart Stores Inc., 455 Mass. 91, 99 (2009); Monteiro v. City of Cambridge, 2011 Mass. App. Unpub. Lexis 965, at 7-8.
Many thoughtful courts are moving away from the standard, and it is time to expressly reject it.
Cases identify some material facts, but do not pretend to have listed all
One method for showing the unworkability of the stringent standard is to examine the ways in which the courts actually treat questions of comparability. Courts never purport to identify “all” relevant characteristics and then compare them. Rather, courts tend to examine just a few criteria and determine whether the various employees are comparable.
Furthermore, many cases have accepted the use of comparator evidence, despite differences in relevant respects between those compared. Employees have been compared despite being:
- in different applicant pools;6
- in different departments;7
- under different supervisors;8
- responsible for different job duties;9
- accused of different types of misconduct;10
- charged with having different levels of culpability;11
- charged with a different combination of wrongdoing;12
- charged with wrongdoing supported by different kinds of evidence;13 and
- affected during different periods of time.14
Given the wide range of evidence found admissible, the “all relevant respects” requirement, in practice, is sometimes not applied as written. Had courts applied the standard to the letter, many of these cases would likely have not survived.
One could fairly question the harm caused by the “all relevant respects” standard, where it sometimes seems to be ignored, or it is applied in a moderate manner. The answer is two-fold. First, the standard is seriously misleading if given as a jury instruction. Second, the standard continues to be used as a mechanism to dismiss cases at summary judgment, by judges who exuberantly adhere to the letter of the requirement.
The requirement stands as an artificial barrier to justice under our most fundamental laws
Chapter 151B represents Massachusetts’ fundamental public policy. The “all relevant respects” standard is nowhere to be found within the statutory text. See M.G.L. ch. 151B, § 4(1). Nevertheless, the state’s voluntary adoption of the standard threatens to render the statute inoperable in cases relying on comparator evidence.
Chapter 151B requires that it be liberally interpreted to effectuate its purpose of eliminating and remedying discrimination. M.G.L. ch. 151B, § 9. This requirement for liberal construction promotes the notion that a broad range of evidence may be considered to support a plaintiff’s claim, including comparator evidence. Sivieri v. Commonwealth, 2006 Mass. Super. Lexis 297, at 22-23 (gender discrimination claim is supportable, even in the absence of comparator evidence). Where the Legislature could have adopted a confining definition of comparators, but failed to do so, it would be contrary to its intent to import a restrictive test that is both illogical and contradicts usual tests of admissibility. The “all relevant respects” hurdle is an artificial one, not found in the statute, and should not be applied to a set of laws designed to be broad in scope.
A review of cases suggests that sometimes comparator evidence is restricted in a manner that is inconsistent with the full and fair functioning of the civil rights laws. For example, in Theidon v. Harvard Univ., 948 F.3d 477, 500-501 (1st Cir. 2020), a female professor was denied tenure in the Anthropology Department, and she brought a gender discrimination claim. Theidon sought to prove her case, in part, based on the fact that the university sent incomplete materials to the individuals reviewing her candidacy, while it sent more complete materials with respect to the tenure application of a male candidate in the same department. After citing the “all relevant respects” test, the First Circuit found that Theidon could not compare her situation against that of the male candidate in the same department, because her subfields were social and medical anthropology, while the male’s subfields were visual and sensory anthropology, even though both candidates’ tenure processes were governed by the same set of written procedures. Id. When professors within the same department going through the same process cannot be compared on a matter of departmental procedure applying to both, it is overdue to revisit the standard applied.
There are numerous other examples of a strict application of the standard.15
The standard imposes an impossible initial burden of production on plaintiffs
For plaintiffs seeking to use comparator evidence, the burden rests on them to establish competent evidence. Matthews, 426 Mass. at 130. The “all relevant respects” burden requires the plaintiff to speculate and foresee all the factors that a defendant could use to try to distinguish a comparator. Id. The “all relevant respects” requirement demands an unrealistic type of clairvoyance, and proof of a negative, to even try to introduce the evidence.
The standard seems to require plaintiffs, as part of their initial proffer, to establish themselves as comparable to others in terms of performance, qualifications and conduct. Matthews, 426 Mass. at 130. However, such factors might not be applicable in a given case, such as when comparator evidence is being used with respect to implementation of a layoff, and where performance is not the issue. As stated above, it is unfair to require a plaintiff to adhere to elements of similarity that a jury could later find to be non-determinative, and did not actually motivate the difference in treatment.16 Thus, it is illogical to place the burden on the plaintiff to foresee factors, and present evidence based upon them.
Sometimes, plaintiffs will use comparator evidence as part of their prima facie case, and an exacting standard is inconsistent with the fact that the prima facie burden is intended to be a light burden. The prima facie case is an initial burden of production designed to raise an inference of discrimination. It is not meant to be an onerous burden. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); Trustees, 449 Mass. at 683. It is meant to be a small showing, easily made. Trustees, 449 Mass. at 683.17
One possible version of the fourth element of the prima facie case — but not the only version — is to show that the plaintiff was treated differently than a similarly situated employee who was outside the protected class. Rivera-Rivers v. Medina & Medina Inc., 898 F.3d 77 (1st Cir. 2018); Trustees, 449 Mass. at 682. It is simply inconsistent for the courts to inject an exacting standard into a prima facie burden that is supposed to be easily satisfied. See Trustees, 449 Mass. at 682-83; Humphries, 474 F.3d at 405-6.18 Also important, the “all relevant respects” requirement, when considered at the prima facie stage, imports consideration of the defendant’s proof at the prima facie stage, which is improper. Acevedo-Parrilla, 696 F.3d at 139.19
Another way to satisfy the fourth element of the prima facie case is to show that the employer retained or hired a replacement outside of the plaintiff’s protected class to perform the plaintiff’s job functions. O’Connor v. Consl. Coin Caterers Corp., 116 S. Ct. 1307, 1310 (1996); Sullivan v. Liberty Mutual Ins. Co., 444 Mass. 34, 44 & n.14 (2005). However, in the many cases that have articulated this burden, none have identified any obligation to show that the replacement is similarly situated in all relevant respects.
Replacement evidence, properly understood, is merely a type of comparator evidence, in that it shows that another person was treated better after the plaintiff was rejected or terminated. Replacement evidence illustrates that comparator evidence remains useful and probative, even if there are areas of difference with the comparator, and without establishing congruence of circumstances in all relevant respects. Young, 575 U.S. at 228 (replacement evidence in prima facie case may be considered, even where the replacement does not share all characteristics with the plaintiff apart from protected status).
The fact that comparator evidence may be considered part of the prima facie case, which is a light burden, demonstrates that it is unfair to erect high barriers to admissibility for that evidence. More generally, the burden on the plaintiff to support her comparator evidence is overly strict, and stifling to otherwise persuasive, competent evidence.
An alternative proposal
As an alternative standard, the author suggests the following: “The plaintiff must show herself to be similar to one or more employees in enough respects such that her situation can be reasonably compared to theirs.”
The proposed standard is consistent with well-established principles, as well as the formulations in the Humphries and Velez cases. Humphries, 474 F.3d at 405; Velez, 585 F.3d at 451. First, circumstantial evidence is admissible if it can help a jury to form reasonable inferences. Fed. R. Evid. 401. Second, evidence that merely adds color to an employment decision may be introduced, even if it goes beyond the specific misconduct for which the plaintiff seeks recovery. Conway, 825 F.2d at 597. Third, categorical rules raising barriers to similarly situated evidence are forbidden. Sprint, 552 U.S. at 387-88. Fourth, it should be up to the jury to weigh the strength of indirect evidence, and this stricture assumes that circumstantial evidence sometimes does not represent a perfect fit. Aikens, 460 U.S. at 714 n. 3. There is no reason why these well-established principles should not apply to comparator evidence.
All the cases agree that the similarly situated standard does not require a clone. Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 916 (7th Cir. 2010). However, the requirement to show similarity in “all relevant respects” is unrealistic, and is associated with decisions that seem contrary to the full, intended operation of the civil rights laws. It is a burden much more stringent than established for any other type of circumstantial evidence of discrimination, and violates the Supreme Court’s prohibition of categorical rules of relevance. Its use prior to trial requires consideration of factors that a jury could find to be relevant but non-determinative. It is time to get rid of the aberrant and unreasonable standard, which is not based on the statutes or ordinary evidentiary principles.
Robert S. Mantell is a partner with Powers, Jodoin, Margolis & Mantell LLP in Boston. Mantell’s practice focuses on plaintiff-side employment law litigation.
1 Comparator evidence is not required in every case to prove discriminatory intent. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 146 (2000) (Court of Appeals erred in assuming that preferential treatment of younger people is required to prove age discrimination); Franchina v. City of Providence, 881 F.3d 32, 52-53 (1st Cir. 2018); George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005); Avci v. Brennan, 285 F. Supp. 3d 437, 441-42 (D. Mass. 2018) (discussing the absurdity of requiring comparator evidence where the plaintiff is in a class by herself). It is legal error to instruct a jury that comparator evidence is required in a discrimination case. Dumeus v. Newton-Wellesley Hospital, 2017 Mass. App. Unpub. Lexis 798, at 2 (“To the extent, therefore, that this instruction prohibited the plaintiff from prevailing without comparator evidence, it was erroneous.”).
2 Sometimes, the statute defines the universe of possible comparators. For example, the Pregnancy Discrimination Act provides that pregnant individuals must be given the same treatment as provided for “other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k); see also 149, § 105A(a) (defining “comparable work” in Equal Pay Act). The employer may not further limit the range of comparators to whom the plaintiff compares herself. Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir. 1996).
3 Sometimes, courts describe this burden as “all material respects” (Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012)), which carries with it the same errors as “all relevant respects.” Other formulations are equally problematic, such as the requirement that comparators “must closely resemble one another,” as opposed to using the more liberal phrase, “similarly situated.” Compare Ray v. Ropes & Gray LLP, 799 F.3d 99, 114 (1st Cir. 2015), with Burdine, 450 U.S. at 258 (“it is the plaintiff’s task to demonstrate that similarly situated employees were not treated equally”).
4 “[S]tray remarks may properly constitute evidence of discriminatory intent for the jury to consider in combination with other evidence.” McMillan v. MSPCA, 140 F.3d 288, 300-01 (1st Cir. 1998).
5 Social scientists refer to a concept called “the focusing illusion,” where people erroneously accord outsized significance to a factor that has been emphasized. R. Cialdini, Pre-suasion: A Revolutionary Way to Influence and Persuade, Simon & Schuster Paperbacks, 2016, at 33. “The tendency to presume that what is focal is causal holds sway too deeply, too automatically, and over too many types of human judgment.” Id., at 54. The overbroad “all relevant respects” test increases the danger that jurors and judges will be wrongly persuaded that a difference explains the biased result.
6 MCAD & McSweeney v. Trial Court of Mass., 2016 Mass. Comm. Discrim. Lexis 9, at 13-15 (applicants were similarly situated, despite the fact that they were in different applicant pools and considered by different interview panels. While DCAM input was in one process but not the other, that was remedied by the fact that the DCAM ok’d the selection of the other process).
7 Sprint, 552 U.S. at 387-88 (employees supervised by different managers in different departments may be similarly situated); Ray v. Ropes & Gray LLP, 799 F.3d 99, 114 (1st Cir. 2015) (legal associates in different practice groups may be compared); Olson v. Chao, 2019 U.S. Dist. Lexis 167937 (D. Mass.), at 39-40 (employee in a different department under a different manager was similarly situated); Hawley v. Dresser Indus., 958 F.2d 720, 724 (6th Cir. 1992) (where the employer failed to transfer the plaintiff, the 62-year-old vice president of planning for a corporate division, but transferred his assistant and a planner in another division following a corporate reorganization, a jury could conclude that the employer was motivated by age bias); MCAD & DiIorio v. Willowbend Country Club Inc., 2011 Mass. Comm. Discrim. Lexis 29, at 8-10 (Full commission affirmed comparator evidence considering layoffs in departments outside the one where the complainant worked).
8 Sprint, 552 U.S. at 387-88 (employees supervised by different managers in different departments may be similarly situated); Olson v. Chao, 2019 U.S. Dist. Lexis 167937 (D. Mass.), at 39-40 (employee in a different department under a different manager was similarly situated); Anderson v. Brennan, 219 F. Supp. 3d 252, 258 (D. Mass. 2016) (“this [c]ourt declines to adopt the Postal Service’s position that another employee disciplined by a different supervisor cannot, as a categorical rule, be a comparator”), 2017 U.S. Dist. Lexis 38750 (D. Mass.), at 31, affirmed 2018 U.S. App. Lexis 35213 (1st Cir.), at 24-25.
9 Trustees of Health, 449 Mass. at 681, 684-85 (part-time employee who worked from home and who was not a supervisor may be compared to full-time office workers, some of whom were supervisors); Anderson v. Brennan, 254 F. Supp. 3d 253, 259 (D. Mass. 2017), affirmed 911 F.3d 1 (1st Cir. 2018) (comparators need not have the same work duties); Boston v. Massachusetts Comm’n Against Discrimination, 47 Mass. App. Ct. 816, 822-23 (1999) (permanent employee was compared with provisional employees despite employer’s argument that the permanent employee bore greater responsibility, where the personnel handbook failed to identify any difference in the standard of conduct among employees. Differing job titles and classifications are not controlling); Rodgers v. White, 657 F.3d 511, 517-18 (7th Cir. 2011) (non-supervisor may be compared to supervisor); Hawley, 958 F.2d at 724 (where the employer failed to transfer the plaintiff, the 62-year-old vice president of planning for a corporate division, but transferred his assistant and a planner in another division following a corporate reorganization, a jury could conclude that the employer was motivated by age bias); Ezell v. Potter, 400 F.3d 1041, 1049-50 (7th Cir. 2005) (plaintiff is properly compared to his supervisor, who engaged in similar misconduct).
10 Haddad, 455 Mass. at 99 (female pharmacist was terminated for leaving the bench briefly unattended, while male pharmacists were not questioned or terminated for engaging in more serious transgressions); Acevedo-Parrilla v. Novartis Ex-Lax Inc., 696 F.3d 128, 145-46 (1st Cir. 2012) (employees engaging in different types of misconduct may be considered by the jury to be similar, even though the company explains that a rodent infestation occurring under the tenure of the comparator was caused by a construction project beyond his control); McDonnell Douglas Corp., 411 U.S. at 804 (employees are similarly situated where they engaged in different types of misconduct of “comparable seriousness”); McAleer v. Starbucks Corp., 2014 U.S. Dist. Lexis 11961 (D. Mass.), at 11-12 & n.7 (jury could find store managers to be similarly situated, even when the employer describes the plaintiff as “categorically deficient,” and the other managers are described as “episodically deficient”); Chase v. United States Postal Service, 2013 U.S Dist. Lexis 157592 (D. Mass.), at 40 (where employer terminated an employee allegedly due to a drug arrest, which was publicized, the employee was similarly situated with others who were arrested, even though two of those arrests were unpublicized and the other employee admitted wrongdoing and begged for forgiveness).
11 Bulwer, 473 Mass. at 688-89 (analysis of harsh criticisms of plaintiff must embrace and take into account the plaintiff’s ability to impugn the credibility of the reviewers); McDonald, 427 U.S. at 283 & n.11 (the “precise equivalence in culpability between employees is not the ultimate question” in an employment case); Velez, 585 F.3d at 451 (where a number of employees were accused of stealing from the employer, there is no distinction that the employee profited from it monetarily, and the other employees did not sell the property for a profit).
12 Jean v. Brennan, 2016 U.S. Dist. Lexis 124941 (D. Mass.), at 14-15 (rejecting employer’s argument that comparators did not engage in the specific type of wrongdoing, and the specific combination of wrongdoing, that the plaintiff was alleged to have perpetrated, including loss of mail, errors in scanning, and refusal to listen to supervisor).
13 Travers v. Flight Services & Systems Inc., 737 F.3d 144, 149 (1st Cir. 2013) (considering comparator evidence where complaint against the plaintiff was firsthand, while a complaint against the comparator was secondhand).
14 Bulwer, 473 Mass. at 686 (comparator Caucasian medical professionals were not disciplined until months or years after incidents, while plaintiff was disciplined immediately); Acevedo-Parrilla, 696 F.3d at 145-46 (the plaintiff’s replacement is considered a valid comparator); Haddad, 455 Mass. at 96, 99 (plaintiff’s replacement is considered a comparator); Anderson, 254 F. Supp. 3d at 259, affirmed 911 F.3d 1 (1st Cir. 2018) (employee discipline may be compared, despite passage of time between incidents).
15... See also Perez v. Horizon Lines Inc., 804 F.3d 1, 4, 8 (1st Cir. 2015) (where female human resources manager put male employee’s car keys in her pants and told him that he could get them back only if he took her home, forced the male to dance with her, lured him to her house on the pretext of a work assignment, only to repeatedly touch his hands and arms, and made him bring her “hot” pastries on a weekly basis, despite inconvenience with respect to his other work duties, court found that the female’s misconduct is not comparable to a male yard manager who was fired for having taken one nude photo on the work site, more than a year before); David v. City & County of Denver, 101 F.3d 1344, 1359-60 (10th Cir. 1996) (where a female employee complained of sexual harassment, and was suspended a few days thereafter for 20 days for being one minute late to roll call, evidence that several male officers with as many or more tardiness violations received less discipline was rejected, because it was held that non-discriminatory differences in treatment of employees in the workplace is to be expected due to random unfairness. Furthermore, the court held that since the employer exhibited a lack of consistency in its record-keeping, it could not meaningfully compare officers — a holding that insulates employers’ discrimination through its own lack of effort to ensure fairness); Knox v. Roper Pump Co., 2020 U.S. App. Lexis 13921 (11th Cir.), at 23 (white worker who slapped co-worker on the job and who was rehired could not be compared to Black worker who slapped a co-worker off-site and was not rehired).
16 The distinguishing characteristics that preclude use of comparator evidence must actually motivate the employer. See Trustees, 449 Mass. at 683-84 (employer’s layoff policy and procedure treated different levels of employees equally, and thus, employees with different job titles and levels of responsibility were considered comparators despite argument from employer that they were not similarly situated); Boston v. Massachusetts Comm’n Against Discrimination, 47 Mass. App. Ct. 816, 822-23 (1999) (permanent employee was compared with provisional employees despite employer’s argument that the permanent employee bore greater responsibility, where the personnel handbook failed to identify any difference in the standard of conduct among employees — differing job titles and classifications are not controlling); Lee v. Kan. City S. Ry., 574 F.3d 253, 260 (5th Cir. 2009) (difference between comparators must account for the difference in treatment in order to preclude comparator evidence).
17 The reader is assumed to be generally familiar with the McDonnell Douglas rubric for proving discrimination, which may be established with a prima facie case along with proof that the employer’s reason for the adverse action is not the real reason. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993); Lipchitz v. Raytheon Co., 434 Mass. 493, 501 (2001).
18 Proof of the fourth element of the prima facie case is apparently now voluntary in Massachusetts, as the SJC has moved to a three-step approach. Verdrager, 474 Mass. at 396-397.
19 The prima facie burden is a burden of production meant to be a collection of the plaintiff’s evidence that generates an inference of discrimination if the employer’s position is “unexplained.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Use of the “all relevant respects” test at the prima facie stage either allows the employer to inject its evidence and argument into this stage, or requires the plaintiff to navigate factors that the employer has yet to assert or rely on. Either way, use of the “all relevant respects” standard is inconsistent with the prima facie rubric. It is suggested that the universe of factors to be considered only is established at the pretext stage, after the plaintiff has had a chance to challenge the employer’s assertion of distinguishing characteristics. To the extent that the plaintiff raises a reasonable inference that a factor was not relied on by the employer, she should not be compelled to compare herself with others on that basis.