It Can Be Hard For A Title VII Plaintiff To Find A "Similarly Situated" Coworker

A federal court in Maryland recently outlined an critical part of any Title VII plaintiff's complaint: a satisfactory allegation that the plaintiff was treated differently from similarly situated employees outside the plaintiff's protected class.

Background: The case was Walker v. Maryland Department of Information and Technology, Civil Action No. CCB-20-219 (D. Md. Nov. 2, 2020).

The Allegations: Ms. Walker, a Black female, alleged that her employer failed to make a reasonable workplace accommodation and discriminated against her on the basis of race and sex by not allowing her to telework on days when she was experiencing a migraine episode. She alleged that she was not given the same opportunities that her "white and/or male co-workers" were given to telework.

It was true that her request to telework on the fly was dismissed - the employer deemed her "mission critical" and said that if she needed to work from home she needed to request a loaner laptop and provide 24 hours notice. As anyone with migraines can attest, they don't provide 24 hour notice before arriving, so that didn't really work for Ms. Walker.

The Problem According To The Court: In order to succeed on a Title VII claim based entirely on a comparison to another employee from a non-protected class, a plaintiff must demonstrate that the other employee (known as the "comparator") was "similarly situated" in all respects. "Similarly situated" generally means that the plaintiff and the other employee dealt with the same supervisor, were subject to the same standards, and engaged in the same conduct but had different treatment or outcomes.

The plaintiff in this case, in her complaint, referred to five comparators. Of those five, two were white males without a disability, one was white without a disability but no sex was given, one was Asian without a disability but no sex was given, and one did not have race or sex listed.

The court found that only the two white males were "entirely outside her protected classes" and thus could be comparators. And, the court found that those comparators were not similarly situated to the plaintiff because the complaint did not allege that they reported to the same supervisor as the plaintiff, that they had the same position as the plaintiff, or that they were designated by the employer as "mission critical" like the plaintiff was.

Because the plaintiff didn't allege that she was treated differently than another similarly situated employee, the Title VII race and sex discrimination claim was dismissed.

My Takeaway: It can be hard for an aggrieved employee in a small company or department to find a "similarly situated" comparator. In this case, the employer was able to use legal requirements to avoid liability on the Title VII discrimination claim, though there were other claims in the lawsuit that survived such as her retaliation and failure to accommodate claim.

And, all of this took place before COVID-19. One wonders if any of this would have happened in a post-COVID world (just let her have the laptop!)