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Who Is Considered A “Similarly Situated Employee” In My Employment Discrimination Case?

In a glass ceiling or other employment discrimination case, one of the factors a court will likely analyze is how the company treated you compared to other “similarly situated employees.”

The precise definition of who is a similarly situated employee varies depending on the specific legal claim and in which federal court you file your case.  Generally, however:

to be similarly situated to another employee, [the plaintiff] must show that the employee is directly comparable in all material respects.

Brown v. Illinois Dep’t of Natural Resources, 499 F.3d 675, 682 (7th Cir. 2007) (citation omitted).  If your case is a class action, rather than an individual complaint, then a different take on the “similarly situated employee” may apply.

How to tell if someone counts as a “similarly situated employee”

To figure out if one of your co-workers qualifies as a “similarly situated employee,” a court will carefully review the particular facts in your case.  Each case and each work environment is different, but some of the criteria that courts evaluate to see if you have identified a similarly situated employee who the company treated better are:

  • do you share the same supervisor;

  • do you perform very similar job tasks and responsibilities (both the number and weight) as the other person;

  • do you have similar job performance evaluations and disciplinary history; and

  • is your experience level (including supervisory experience) the same as the other person

Most courts do not require an exact match on these criteria, but the more similar you are to the other person, the more likely a court will deem them a “similarly situated employee.”

It may not always be required to identify a “similarly situated employee,” but it certainly helps

Not all federal courts require a plaintiff in an employment discrimination case to identify a similarly situated employee.  “Although appellant certainly could have offered evidence of ‘similarly situated’ employees in support of her claim, she was not required to offer such evidence in order to make out a prima facie case.”  Wiley v. Glassman, 511 F.3d 151, 156 (D.C. Cir. 2007);  Bryant v. Aiken Reg. Med. Ctr., 333 F.3d 536, 546 (4th Cir. 2003) (“However helpful a showing of a white comparator may be to proving a discrimination claim, it is not a necessary element of such a claim.”).

Of course, even though it may not be required to show a similarly situated employee who the company treated better, it is almost always more helpful to your case if you can make and prove this comparison.

Identify “similarly situated employees” as early as possible

The earlier you can point to “similarly situated employees” during the litigation of your case, the better.  That way, your attorney can find out as much information as possible during the discovery phase, in which you and your employer are required to exchange relevant information related to your case.

Given that you will want to show the court that these other employees were very similar to you (job-wise) in most respects, it is vital to obtain as much evidence as possible that establishes this employment likeness.  

© 2022 Zuckerman LawNational Law Review, Volume VII, Number 151
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About this Author

Zuckerman Law represents whistleblowers worldwide in Dodd-Frank SEC whistleblower rewards claims and represent whistleblowers nationwide in Sarbanes-Oxley retaliation claims and other whistleblower retaliation claims litigated before the US Department of Labor.

202-262-8959
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