Dodging Bullets in the Eleventh Circuit

On March 21, 2019, the Eleventh Circuit Court of Appeals issued its en banc decision in Lewis v. City of Union City. The case is important both for its clarification of what evidence an employee must show to avoid dismissal of discrimination claims and for the bullet employers dodged in employment discrimination claims.

The issue the Eleventh Circuit decided in Lewis was the standard that a plaintiff must meet to show preliminarily that his/her treatment by the employer was discriminatory. This preliminary showing, called the prima facie case, is intended to “eliminate ‘the most common nondiscriminatory reasons’” for an employment action, and “to provide a sound basis for an ‘inference of unlawful discrimination.’” In other words, the prima facie burden on a plaintiff in an employment discrimination case is to present sufficient evidence that, if unrebutted, allows the court (or a jury) to infer that the reason for the employment action was discrimination.

In employment termination cases, the plaintiff’s prima facie burden is usually described as requiring a showing that (1) the employee belongs to a protected class, (2) the employee was subjected to an adverse employment action, (3) the employee was qualified to perform his/her job, and (4) the employer treated similarly situated employees outside the plaintiff’s protected class more favorably. In a split decision, the Eleventh Circuit analyzed the “similarly situated” requirement in two ways. First, was the question of whether the plaintiff has to present evidence of similarly situated employees as part of the prima facie case, or if the employer should be required to rebut the existence of similarly situated employees. The second question was what is the standard for showing that an employee is “similarly situated.”

On the first question, the majority of the court determined that an employee claiming employment discrimination must show that similarly situated employees outside the protected class were treated more favorably as part of the prima facie case. The basis for the court’s decision is simple – the purpose of the prima facie case is to ferret out those claims where discrimination was a likely reason for the employment action from those where common, legitimate and non-discriminatory reasons predominate. Logic dictates that when an employee claims that he/she was treated differently than similarly situated employees outside his/her protected class, then the employee should present some evidence that he/she and they are, in fact, similar. Otherwise, all the employee would have to show is that he/she is in a protected class, suffered an adverse action, and was qualified for his/her job – in other words, the employee would not have to raise any evidence that he/she was treated differently than other employees who are not in the protected class. As the majority of the court noted, this “would effectively shift to the defendant the burden of disproving discrimination – which is precisely what the Supreme Court has forbidden.”

On the second question, the majority of the court held that in order to show that an employee outside the plaintiff’s protected group is “similarly situated,” the “plaintiff must show that [the employee] and [his/her] comparators are ‘similarly situated in all material respects.’” The majority reasoned that this standard “properly balances the need to protect employees from invidious discrimination with the deference owed to employer’s rational business judgements, and sensibly serves considerations of sound judicial administration by making summary judgment available in appropriate (but by no means all) cases.”

The dissenting judges took a very different view of the issue and would have ruled that the employee need not present evidence of similarly situated comparator employees as part of the prima facie case. Without addressing the central premise of the majority’s ruling – that the point of the prima facie case is to require the plaintiff to elicit sufficient evidence to suggest that discrimination played a part in the employment decision – the dissent would have held that the existence of comparable employees should be addressed only when the employer must present evidence to defend itself. In other words, just as the majority noted, under the dissent’s standard, the employee need only show he/she was in a protected class, suffered a job action, and was qualified for their job in order to require the employer to answer for an alleged discriminatory act where no differing treatment among employees was identified to begin with. As the majority observed, the burden would have then fallen on the employer not to explain itself, but rather, to prove it had not discriminated against the plaintiff.

If the dissenting judges had prevailed in their analysis, the floodgates of meritless employment discrimination claims would have been opened. It is easier to make an accusation of discrimination than it is to actually be required to show some evidence supporting the accusation. It is also easier to sit back and poke holes in the employer’s explanation for the employment decision and its supporting evidence than to have to explain how that decision was discriminatory in the first instance. Employers in the Eleventh Circuit should be thankful that reason and logic prevailed in this case.