Seventh Circuit Emphasizes "Flexible" Similarly-Situated test in Discrimination Case Involving Threats, Violence at USPS

A female African-American Postal Service employee of 35 years voluntarily entered a psychiatric clinic to be treated for depression, anxiety, and insomnia. While in treatment, she admitted having homicidal thoughts toward her supervisor. She was eventually discharged after much improvement and returned to work, but her supervisor learned of the threats after calling the clinic. She was almost immediately terminated for what the employer said was a violation of its workplace anti-violence policy.

The employee sued the Postal Service, alleging that she had actually been terminated based upon her race and sex in violation of Title VII of the Civil Rights Act of 1964, as amended. As part of her case, she showed that, shortly before her threats became known, two white male workers who had “jokingly” held down a black worker and pulled a knife on him had only been suspended for 7 days. She argued that this was evidence that the anti-violence policy was a pretext for the actual discriminatory reasons for her termination. The district court granted summary judgment for the Postal Service, reasoning that the male workers, who worked in different positions than the employee and committed a different violation, had not been “similarly situated” to the employee and so could not be used to prove her case.

On appeal, the U.S. Court of Appeals for the Seventh Circuit reversed. The Seventh Circuit held that the district court’s analysis of the “similarly situated” question had been far too demanding. Because the male workers had been terminated by the same decisionmaker, were subject to the same anti-violence policy, and had committed a violation of at least equivalent — and possibly greater — seriousness, they were sufficiently “similarly situated,” and could be used to show that the employer had terminated the female employee for discriminatory reasons rather than violation of the anti-violence policy. The Seventh Circuit emphasized that it is concerned about “the tendency of judges in employment discrimination cases to require closer and closer comparability between the plaintiff and members of the comparison group,” because “[d]emanding nearly identical comparators can transform this evidentiary ‘boost’ into an insurmountable hurdle.”

In light of the Seventh Circuit's statements regarding the flexibility of the "similarly situated" test, employers should ensure that all disciplinary policies are evenly enforced among all employees. Any discrepancy in enforcement can later be used as comparative evidence to support a discrimination claim.