Mopping up the Mess: A Call to Adopt the Seventh Circuit’s Standard for Assessing Comparator Evidence in Title VII Discrimination Claims

In McDonnell Douglas Corp. v. Green, the U.S. SupremeCourt developed a framework to assist courts in assessingindividual disparate treatment claims based oncircumstantial evidence. Under that test, plaintiffs allegingdiscrimination under Title VII must first show a prima faciecase of discrimination. Since McDonnell Douglas, courts havemodified the test by requiring plaintiffs to demonstrate thatthey were treated less favorably than a similarly situatedcomparator employee who is outside the plaintiff’s protectedclass. Courts disagree, however, on what it means foremployees to be similarly situated. Some courts strictlyinterpret the similarly situated requirement; others cautionagainst an overly mechanical approach and employ a flexiblestandard instead. As a result, a plaintiff could successfullyplead a prima facie case of discrimination in one federalcircuit but fail in another. To resolve this disparity, this Noteproposes that the U.S. Supreme Court adopt the SeventhCircuit’s standard for comparator evidence due to itsconsistency with the Court’s precedent, its cohesion with thepurposes underlying Title VII, and its practical benefits forplaintiffs alleging a prima facie case of employmentdiscrimination.