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What does "similarly situated" mean anyway?

When we talk with employers, we tell them again and again that one of the best defenses to discrimination claims is to treat similarly situated employees the same.  But what does that mean?  When are employees similarly situated?  A recent discrimination case provides a good illustration of the concept.

In Hodczak v. Latrobe Specialty Steel Co., four employees in their late 50s and early 60s sued their employer for age discrimination after their employment was terminated.  According to the employer, it terminated the employees’ employment because they regularly exchanged emails containing sexually explicit photographs – i.e., porn – in violation of the company’s Electronic Communications Policy.  The employer discovered the porn exchange while it was investigating a sexual harassment complaint against one of the terminated employees.

The employees argued that their ages must have been the reason for their termination because other, younger employees had not been terminated despite similar behavior.  The court, however, rejected that argument.  As to one of the allegedly similarly situated younger employees, the court found that although he accessed pornographic websites on his work computer, he was not a supervisor and did not send the porn to anyone else.  As to another, the court found that he was not similarly situated to the older employees because there was no evidence that he actually sent any sexually explicit emails.  And, as to the third allegedly similarly situated individual, the court found that he sent only one email and did so from his personal computer.  In contrast, the older employees traded sexually explicit emails on a nearly daily basis from their work computers.

Based on this decision and others that have interpreted the concept of similarly situated employees, the following factors can often provide a legitimate basis for treating employees differently:

  • Supervisory employees versus non-supervisory employees
  • Employees subject to just-cause provisions in a collective bargaining agreement versus at-will employees
  • Employees who engage in a single instance of misconduct versus employees who are repeat offenders
  • Employees who hold positions that require interaction with the public versus employees who do not interact with the public
  • Employees who express regret and contrition versus employees who lie or blame others
  • Employees who use company property to perpetrate a wrong versus those who use their own property to do so

Determining whether employees are similarly situated for legal purposes is highly fact and context dependent.  If you have questions or are unsure, consult your legal counsel for advice.