Employment and Labor

No Longer A Mess: En Banc Eleventh Circuit Clarifies the Standard for Similarly Situated Comparators

No Longer A Mess: En Banc Eleventh Circuit Clarifies the Standard for Similarly Situated Comparators

Last month, the en banc Eleventh Circuit clarified the appropriate standard for analyzing “similarly situated” comparator evidence in Title VII intentional-discrimination cases. Lewis v. City of Union City, Ga., — F.3d —-, 2019 WL 1285058 (11th Cir. Mar. 21, 2019) (en banc). The previous Eleventh Circuit precedent set forth various inconsistent standards by requiring a proper comparator to either be “nearly identical;” to have engaged in the “same or similar conduct”; or both simultaneously.[i] To quote the Court, “[i]t’s a mess.”[ii] In Lewis, the Court rejected these standards and held that “a plaintiff asserting an intentional-discrimination claim under McDonnell Douglas must demonstrate that she and her proffered comparators were ‘similarly situated in all material respects.’[iii] The Court also rejected Plaintiff’s argument that a court’s comparator analysis should be conducted at the pretext stage, not the prima facie stage, of McDonnell Douglas’s burden-shifting framework.[iv]


Jacqueline Lewis’s race and gender discrimination case arose out of the Union City Police Department’s adoption of a policy in 2010 requiring all officers to carry Tasers and, as part of that policy, to receive a five-second Taser shock as part of their training. Lewis, an African-American woman working as a detective in the Department, suffered a heart attack in 2009, but had been cleared to return to work without any restrictions. Because of her previous heart attack, Lewis’s doctor recommended that neither a Taser nor pepper spray be used “on or near” Lewis. As a result, the Police Chief concluded that Lewis could not perform the essential duties of her job, and placed her on unpaid leave. After Lewis failed to complete the necessary FMLA paperwork, her absence was deemed unapproved, and she was fired. Lewis then brought suit against Union City and the Chief of Police.

When defendants moved for summary judgment on Lewis’s race and gender discrimination claims, she proffered two white male potential comparators whom she claimed had been treated more favorably. The district court, however, concluded that her proffered comparators did not qualify under either of the two standards set forth in the Eleventh Circuit’s prior case law. A panel of the Eleventh Circuit reversed, concluding that Lewis had offered valid comparators. It also rejected the “nearly identical” standard by limiting it to workplace-misconduct cases.[v] The en banc Eleventh Circuit then vacated the panel decision and granted rehearing en banc.


The en banc Eleventh Circuit’s opinion decided two issues.[vi] First, should the similarly situated comparator analysis be conducted at the prima facie stage or the pretext stage? Second, “what is the proper standard for determining whether a plaintiff and her comparators are ‘similarly situated’?”

In response to the first question, the majority noted that the parties seemed to agree “that the qualitative assessment of comparator evidence has historically occurred in—and been an integral part of—the plaintiff’s prima facie case.”[vii]  For several reasons, the Court rejected Lewis’s argument that the comparator analysis should be conducted during the pretext stage, reaffirming that courts must conduct the comparator analysis at the prima facie stage. The Court noted that the Supreme Court has consistently included the comparator-evidence assessment as an element of a plaintiff’s prima facie case, and “for good reason”: “[d]iscrimination consists of treating like cases differently,” and establishing at the outset that the plaintiff was treated differently from a similarly situated employee gives rise to an inference of discrimination.[viii] As a result, “a meaningful comparator analysis must remain part of the prima facie case.”[ix]

The Eleventh Circuit heard the case en banc primarily in order to answer the second question, i.e. “to determine whether we should continue to apply one of [the previously enunciated] standards, or instead adopt some other test,” as the Plaintiff argued, including the Seventh Circuit’s “flexible, common-sense” test.[x] The Court ultimately held that to satisfy the similarly situated comparator standard, a plaintiff must show that she and her comparators were “similarly situated in all material respects.”[xi]

The majority, while acknowledging that the “sort of similarity the in ‘all material respects’” standard entails will have to be worked out on a case-by-case basis,” set out a series of “guideposts” that would underlie a valid comparison. First, plaintiffs need not prove that “she and her comparator are identical save for their race or gender.”[xii] Nor will differences in “purely formal similarities” or “minor differences in job function” disqualify a comparator.[xiii] Second, the Court explained, a similarly situated comparator ordinarily will: have engaged in the same basic conduct (or misconduct) as the plaintiff; have been subject to the same employment policy, guideline, or rule as the plaintiff; ordinarily (although not invariably) have been under the jurisdiction of the same supervisor as the plaintiff; and share the plaintiff’s employment or disciplinary history.[xiv] In short, comparisons must “turn not on formal labels, but rather on substantive likenesses.”[xv] In applying this new standard to Lewis’s case, the Court found that she had not made out a prima facie case because her proffered comparators were not similarly situated in all material respects.

The 68-page dissent decried the majority opinion as “drop[ping] an anvil on the employer’s side of the” McDonnell Douglas balancing inquiry and “significantly reducing the employee’s chances of surviving summary judgment” because of the combination of the Court’s clarification of the similarly situated standard with its holding that the comparator analysis occurs at the prima facie stage. As the dissent explained, the Supreme Court in McDonnell Douglas itself had more rigorously analyzed comparators at the pretext stage, rather than the prima facie stage.[xvi] At the prima facie stage, the Court had accepted as comparators “any white mechanic who had been rehired,” while at the pretext stage it found particularly relevant evidence that white employees who engaged in conduct “of comparable seriousness” were rehired.[xvii] By requiring a “rigorous” comparator analysis and by using the “all material respects standard” at the prima facie stage rather than at the pretext stage, the dissent argued, the Court made it much more difficult for a plaintiff to establish a prima facie case. In other words, instead of making only a minimal and generalized showing that a proffered comparator is similarly situated at the prima facie stage, a plaintiff must establish with specific evidence that a proffered comparator is similarly situated in all material respects.


Going forward, practitioners in the Eleventh Circuit must take care to use the new standard in arguing that a comparator either is or is not similarly situated. Relatedly, practitioners must proceed with caution in citing or relying on Eleventh Circuit cases applying the previous “nearly identical” or “same or similar conduct” standards. Counsel should carefully consider whether the plaintiffs in those cases would survive summary judgment under the new “in all material respects” standard before analogizing to those cases or otherwise relying on them. Given the unclear nature of the inquiry before Lewis was decided, and given the frequent application of the “nearly identical” standard to previous cases, the best takeaway may be that it serves as helpful clarification, while denying employers the benefit of the “nearly identical” standard and denying employees the benefit of the “same or similar” standard. Importantly, it remains to be seen whether, in application, this case will indeed have the impact foretold by the dissent on summary judgment decisions, or whether, in practice, it will not meaningfully tip the scales either way.

In sum, Lewis is an important clarifying opinion for those litigating Title VII intentional-discrimination cases in the Eleventh Circuit. Given the split on the en banc court, and in light of the circuits’ differing standards for how a plaintiff establishes a prima facie case that a proffered comparator is similarly situated, the Supreme Court may eventually weigh in to provide further clarification.

[i]       Lewis, 2019 WL 1285058, *1.

[ii]      Id.

[iii]     Id. at *2.

[iv]     Id. at *2-3.

[v]      Id.

[vi]     Id. at *1

[vii]     Id. at *4.

[viii]    Id. at *5.

[ix]     Id. at *6.

[x]      Id.

[xi]     Id. at *8.

[xii]     Id.

[xiii]    Id.

[xiv]    Id. at *8-9.

[xv]     Id. at *9.

[xvi]    Id. at *17-18.

[xvii]  Id.