Under Title VII of the Civil Rights Act of 1964 (Title VII), plaintiffs typically prove their cases using circumstantial evidence. In its 1973 landmark ruling in McDonnell Douglas Corp. v. Green, the U.S. Supreme Court articulated the burden-shifting scheme for proving a Title VII case based on indirect evidence, part of which typically requires a plaintiff to show that he or she was treated differently than “similarly situated” employees.

 The full U.S. Court of Appeals for the Eleventh Circuit recently had occasion to clarify its interpretation of what “similarly situated” means in this context, ruling in Lewis v. City of Union City that plaintiffs “asserting an intentional-discrimination claim under McDonnell Douglas must demonstrate that she and her proffered comparators were similarly situated in all material respects .” This standard, according to the Eleventh Circuit, ensures that plaintiffs and comparators are objectively sufficiently similar such that they “cannot reasonably be distinguished.”  

 There is a circuit split concerning the proper standard to apply. The Second, Sixth, Seventh, and Ninth Circuits have adopted interpretations similar to the Eleventh Circuit. Other circuits subscribe to a less strict “relevant in all respects” standard, while the Fifth and D.C. Circuits apply a stricter “nearly identical” test.  

Members of the Center for Workplace Compliance (CWC) can read more here.