The Rocky Mountain Employer


Labor and Employment Law Updates

Employers Given Space to Make Appropriate Business Judgments

            A federal appeals court has held that a plaintiff claiming intentional workplace discrimination must prove her employer treated her worse than co-workers outside her protected class who were similar to her “in all material respects.”FN1 The court reasoned that the standard protects employees from discrimination and also defers to employers’ rational business judgments and sensibilities.

             Absent direct evidence of discrimination, a plaintiff alleging workplace discrimination must establish a so-called prima facie case by showing that they (1) are members of a protected class; (2) were qualified for the position; (3) suffered an adverse employment action; and (4) were treated less favorably than “similarly situated” employees outside their protected class.FN2 In Lewis v. City of Union City, Georgia, an African-American female police officer alleged that she had suffered race and gender discrimination in violation of Title VII and identified two Caucasian male police officers she claimed had been treated more favorably. The court, applying its new “similarly situated” test, reasoned that because the three officers were subject to different personnel policies, engaged in dissimilar conduct, and were placed on leave for different reasons, they were not similarly situated in all material respects, and therefore the two officers were not valid comparators for the plaintiff to prove discrimination.


             Employers can minimize exposure to discrimination claims by ensuring their actions are based on legitimate, nondiscriminatory reasons, and that they treat employees consistently. However, despite the best intentions to remain consistent, “in the real world (and real workplaces)” no two employees or work situations are identical,FN3 and employers should be given some flexibility to adjust treatment of employees based on what policies they are subject to, the differences in their misconduct, and their different work histories. The Lewis decision gives employers in Florida, Georgia, and Alabama such flexibility.FN1


FN1:  Lewis v. City of Union City, Georgia, 15-11362, 2019 WL 1285058, at *2 (11th Cir. Mar. 21, 2019) (emphasis added). The Eleventh Circuit includes Florida, Georgia, and Alabama. The Eleventh Circuit’s decision highlights a split among circuit courts on what standard to apply to cases considering whether employees can show discriminatory treatment. It is uncertain whether this decision will be challenged in the U.S. Supreme Court. Patrick Dorrian and Chris Marr, Intentional Job Bias Proof Test ‘Clarified’ by 11th Cir. (2), Bloomberg Law (March 21, 2019),

FN2: Id. at *3. Other Circuits have articulated slightly varying elements to prove a prima facie case of discrimination. In the event a plaintiff proves a prima facie case, the burden shifts to the employer to set forth a legitimate, non-discriminatory reason for its actions. Lewis, 2019 WL 1285058, at *3. When the employer meets this burden, the plaintiff must prove the stated reason was merely a pretext for discrimination. Id.

FN3: As the court stated in Lewis, “in the real world (and real workplaces), ‘doppelgangers are like unicorns’—they don’t exist.” Lewis, 2019 WL 1285058, at *7.