Compare This: How Employers Use Comparator Evidence to Defeat Employment Discrimination Claims

Abstract

Employment discrimination statutes prohibit employers from discriminating against individuals on the basis of certain protected characteristics, such as race or sex. For intentional discrimination claims, plaintiffs often attempt to prove an employer’s discriminatory intent with comparator evidence attempting to show that the plaintiff was treated differently than a similarly situated individual outside the plaintiff’s protected class. Although plaintiffs often invoke comparator evidence to prove discriminatory intent, comparator evidence may also be helpful in disproving that alleged intent. This Article identifies the four primary ways employers use comparator evidence to defeat employment discrimination claims, and shows how courts have analyzed those defenses with a particular emphasis on recent decisions of the United States Courts of Appeal. From there, this Article presents a unique framework for defendants to employ in creating a defense to an employment discrimination claim involving comparator proof, one modeled from the theory of stasis from classical Greek and Roman rhetoric.