Written by attorney Randy T. Enochs

7th Circuit Holds a Supervisor Can Be a "Comparator" Under Title VII

The Court of Appeals for the Seventh Circuit recently held in Rodgers v. White, No. 10-3916 (7th Cir. Sept. 2, 2011) that a district court erred in holding a supervisor cannot be comparable to a line employee for purposes of applying the McDonnell Douglas method of proof, vacating summary judgment and remanding the claim for trial. In making their decision, the 7th Circuit stated: "We have observed in many decisions that employees of differing ranks usually make poor comparators, but the rationale behind that general rule does not apply in this case." The Court further stated:

"Many times we have acknowledged that supervisors usually make poor comparators for plaintiffs claiming employment discrimination. But usually does not mean always, and we have not held that a supervisor is never an apt comparator. Supervisors typically make unrealistic comparators because, as relevant to the issues in a particular case, employees of higher rank commonly have different job duties or performance standards. And especially in situations where the plaintiff alleges discriminatory promotional practices, it is difficult for the plaintiff to show that he deserved to be promoted over an employee of a higher rank, who usually possesses more experience. Yet when uneven discipline is the basis for a claim of discrimination, the most-relevant similarities are those between the employees' alleged misconduct, performance standards, and disciplining supervisor. Formal job titles and rank are not dispositive; an employer cannot 'insulate itself from claims of racial discrimination' by making formalistic distinctions between employees. Thus, when a plaintiff and his supervisor were accused of making similar mistakes, were equally responsible for avoiding those mistakes, and were disciplined by the same superior, the plaintiff can make a realistic comparison with his supervisor for purposes of establishing a prima facie case of discrimination."

This decision makes sense because it recognizes the reality and practical work place in the real world. It is encouraging to see the 7th Circuit applying Title VII and the McDonnell Douglas burden-shifting scheme in a flexible manner that allows for common-sensical results.

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