The Case
The Fourth Circuit recently upheld a lower court decision granting summary judgment to the employer in an employment discrimination suit brought under Title VII of the Civil Rights Act of 1964 (“Title VII”) and Maryland law, holding that the plaintiff failed to establish her claim of race discrimination because she could not identify any similarly situated employees who were treated more favorably by the employer.
In Hurst v. District of Columbia, 2017 WL 908208 (4th Cir. 2017), the plaintiff, Jacqueline Hurst, was terminated by the District of Columbia Department of Youth Rehabilitation Services (“DYRS”) after a routine background check revealed that she had been convicted of a felony during her employment. In support of her claim, Ms. Hurst, who is white, identified 14 African-American DYRS employees whom she claimed were permitted to remain on staff after their background checks revealed similar, if not worse, criminal offenses. In response, DYRS argued that Ms. Hurst could not establish a disparate treatment claim because her proffered comparators were not actually similarly situated to her. [Read more here and here].
The court sided with DYRS, finding that Ms. Hurst had failed to identify any similarly situated non-Caucasian employees who were treated more leniently by DYRS. The court distinguished the individuals identified by Ms. Hurst on a number of bases. At least one comparator was found to have been rehabilitated by the time DYRS discovered her conviction, while others had committed criminal offenses prior to their employment with DYRS, were arrested but not found guilty, or were only found guilty of misdemeanors. Because Ms. Hurst failed to identify any similarly situated non-white employees, the court found that she could not establish a prima facie claim of discriminatory discharge under Title VII and Maryland law.
To read the full Opinion, click here.
What Does It Mean to be a Similarly Situated Employee?
To succeed on a discriminatory discharge claim, a plaintiff must show: (1) that she is a member of a protected class; (2) that she was performing the job adequately and meeting the employer's expectations at the time of discharge; (3) that she was fired; and (4) that other employees outside the protected class were retained under apparently similar circumstances. In order to establish the fourth element, a plaintiff must identify as a “comparator” at least one employee outside his or her protected class and demonstrate that the comparator was “similarly situated” in all relevant respects—namely, that the comparator dealt with the same supervisor, was subject to the same standards and engaged in the same or similar conduct as plaintiff without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.
In determining whether an employee’s misconduct is comparable in seriousness to that of another employee outside the protected class, the Fourth Circuit has held that their respective offenses do not need to be precisely the same in order to show that employees are similarly situated. Even so, similarity to comparators and the seriousness of their respective offenses must be clearly established in order to be meaningful. For example, the Fourth Circuit weighs the gravity of the offenses on a relative scale, comparing the harm caused or threatened to the victim or society and the culpability of the offender.
The Takeaway
While the decision in Hurst does not cover any new legal ground, the decision highlights the importance of consistency when it comes to disciplining or terminating employees. When taking such actions, it is important that employers identify and document the specific reasons for each action at the time the action is taken. Employers should try to maintain such records for as long as reasonably possible, not only for future litigation purposes, but also to use as a reference in evaluating future instances of misconduct to ensure that similarly situated employees are being treated in a consistent manner. In addition, employers should establish or update written employment policies and procedures regarding discipline and corrective action and ensure that such policies and procedures are being properly enforced and evenly applied. Employers can further ensure that similarly situated employees are being treated in a consistent manner by requiring that decisions to discipline or terminate an employee are reviewed and approved by specific individuals designated by the employer to do so.
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