BUSINESS LAW: What is a similarly situated employee?

2011-04-17T00:00:00Z BUSINESS LAW: What is a similarly situated employee?By James L. Jorgensen Times Business Columnist
April 17, 2011 12:00 am  • 

To prevail on a sex discrimination claim, a female employee must demonstrate that similarly situated men, subject to the same company policy, were treated more favorably.

Male comparators are not similarly situated simply because they are subject to the same company policy; instead, the severity of the policy violation also must be considered.

Consider these facts: A supervisor noticed one of her employees - a female - spent a great deal of time at her computer, but still did not complete all of the work assigned to her. Further investigation revealed that the employee spent more than 16 hours on the Internet visiting websites unrelated to her job. Evidence indicated she was using her work computer for her outside business.

The employer had a policy requiring employees who have outside employment to file a form with it and to obtain authorization for the outside employment. The policy stated that unauthorized outside employment may be grounds for termination.

The employer's computing policy allowed for some personal use of the Internet by its employees. However, it specifically prohibited conducting outside employment on company equipment. The female employee was terminated for violating company policy by using work computers to conduct her personal outside business.

The female employee alleged gender discrimination. She argued that male employees had violated the same policies, yet were not fired. Did this defense prevail?

It did not. When comparing how men and women are treated, the issue is how were they treated in situations of the same severity. Even though males violated the computer use policy, none of them came close to the female employee's excessive use. To this extent, she was in a class of her own, alone and without a basis of asserting a claim of discrimination.


Opinions are solely the writer's. James Jorgensen practices law at Hoeppner Wagner & Evans in Valparaiso.

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