Workers seeking to succeed in discrimination cases can prove that their employers engaged in discrimination via disparate treatment or disparate impact. Each variant requires different arguments and different sets of proof. If you’ve been harmed at work because of your race, gender, or other protected characteristic, get in touch with a knowledgeable New York employment discrimination lawyer, who can help you map out a plan for getting justice.
Disparate treatment, as the name implies, refers to employers treating employees or job candidates differently based on one or more protected characteristics. If you’re pursuing a disparate treatment case, one way to succeed is by using a comparator (or comparators.) These are colleagues who were “similarly situated” to you but were treated better than you.
A recent gender and race discrimination case from here in New York City offers an illustration of what a strong comparator might look like.
The worker who sued, B.T., was a Black woman and an officer in the New York Police Department. In 2017, the NYPD’s Internal Affairs Bureau began investigating B.T. and her relationship with G.G., a man accused of bank fraud.
In January 2019, the NYPD took disciplinary action against the officer, charging her with “knowingly associating with someone engaged in criminal activity, knowingly associating with someone likely to be engaged in criminal activity, providing [G.G.] access to her rental car, elusive banking transactions, improperly using the department computer system, discussing department business, failure to cease communications with [G.G.],” and “misleading IAB and impeding a departmental investigation.”
The NYPD gave the officer two options: resign and keep her pension or be fired and lose her pension. The officer subsequently sued the city, alleging race and gender discrimination based on disparate treatment.
Ways Your Comparator Should Be Similar… and Different
When naming a comparator in a disparate treatment case, it is important to select someone who shares many employment-related things in common with you but is different in two key ways: (1) they’re outside the protected group that makes up the basis for your discrimination claim, and (2) the employer treated them better than you.
The more things you and your proposed comparator have in common, the more likely the court will find that you are similarly situated. For example, say Abe and Brian are telephone customer service reps for a big bank. They’re both White males, have similar amounts of seniority, and work in the same group under the same supervisor. In the past six months, both Abe and Brian have arrived late to work seven times. Brian, who is 28 years old, received a written reprimand. Abe, who is 56, got fired. In this example, Abe might have a disparate treatment age discrimination case and, in that lawsuit, Brian might make for a very viable comparator.
In B.T.’s case, she had a strong comparator for her race discrimination claim. Allegedly, a White female officer who worked in the same precinct as B.T. was dating an “active gang member” and tipped off her boyfriend about a search warrant the NYPD was preparing to execute, thereby allowing the boyfriend to get away and avoid arrest. Rather than threaten the White officer with a forced resignation or else a termination and loss of her pension, the NYPD merely docked her 10 days pay and transferred her to a different precinct, according to B.T.
The court noted that B.T. had identified a specific colleague by name, who worked in the same precinct as B.T. did, who seemingly engaged in similar misconduct, but who received a very different punishment. This, the court ruled, was “sufficient to carry” the officer’s burden of naming a sufficiently similarly situated comparator to support her disparate treatment claim and defeat the city’s motion to dismiss.
Pleading a Disparate Impact Case
In contrast to disparate treatment cases, disparate impact cases deal with an employer’s use of a facially neutral rule, policy, practice, etc. that, in its application, results in a disproportionately negative impact on a protected class of workers. (An example might be an employer instituting mandatory Saturday work hours. The rule is neutral on its face but has the potential to inflict disproportionate harm on members of certain religions like Judaism and Seventh-Day Adventism.)
Whether yours is a potential disparate treatment or a disparate impact case, an experienced legal advocate can help you achieve a successful outcome. The knowledgeable and diligent New York race discrimination attorneys at Phillips & Associates are dedicated to helping employees get justice, whether that means taking on a small business employer or a major corporation. To learn more, contact us online or at (833) 529-3476 to set up a free and confidential consultation.