Thursday, January 23, 2020

What does it mean to be "similarly situated" for purposes of proving discrimination?

The Ohio Department of Public Safety fired Morris Johnson, an African American state trooper, after he sexually harassed multiple women while on duty. He claimed that his termination was because of his race, and pointed to David Johnson, a White trooper, who he claimed committed similar harassment but was not fired.

The 6th Circuit Court of Appeals disagreed, concluding that the two Johnsons were not "similarly situated in all relevant respects."

Morris Johnson and David Johnson are both troopers who acted inappropriately. And they happen to share the same last name. But the similarities end there. The Department disciplined the two troopers differently because their situations were different. …
  • Morris Johnson harassed intoxicated women. David Johnson did not.
  • Morris Johnson was on duty (wearing a uniform and carrying a sidearm) during his encounters. David Johnson was not.
  • Morris Johnson harassed women while he detained them (so they were not free to leave). David Johnson did not.
  • Morris Johnson propositioned a woman to go out with him. David Johnson did not.
  • Morris Johnson pulled a woman over without probable cause to ask her out. David Johnson did not.
  • Morris Johnson went to a woman's home. David Johnson did not.
The list goes on. As the district court explained, it's simple: "[T]he quantum of misbehavior is radically different, so one would naturally expect a radically different disciplinary outcome."

For purposes of discrimination claims, comparators needs to have more in common than their job title (and name). When their misconduct differs by such a large degree, a court won't second-guess the employer's judgment in treating them differently.

* Image via Marnie Joyce from New York City, USA [CC BY]