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What is disparate treatment discrimination?

Best Employment Discrimination Lawyer Answer: Early this year, our employment discrimination attorneys blogged about how an employer could be liable for discrimination under Title VII of the Civil Rights Act of 1964 based on unevenly and discriminatorily issuing discipline based on employees race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, or disability. (Best Law Read: Can Unequal Progressive Discipline Prove Discrimination?). Essentially, treating employees differently based on a protected class when deciding discipline is a from of disparate treatment. (Best Law Read: What Is Disparate Treatment?; Racial Discrimination: Any Disparate Treatment May Give Rise To A Very Good Claim). To prove a disparate treatment claim, an employee needs to present sufficient evidence that the employer treated him/her/they less favorably than other workers outside his/her/their protected class.

What does “similarly situated employee” mean?

Best Race And Gender Discrimination Attorney Answer: In order to prevail on a disparate treatment claim, the employment must present evidence that he/she/they were treated less favorably than a similarly situated employee who is outside the complaining employee’s protected class. In employment discrimination cases under Title VII, employees are generally considered similarly situated to the employee-plaintiff if they perform similar work responsibilities or are guilty of similar misconduct. Although different courts have and will continue to apply this concept differently, most will evaluate the following factors to determine if employees are similarly situated:

  • Are the employees subject to the same employment policies, procedures, or rules?
  • Do the employees perform the same or very similar job tasks, including such things as volume, number, weight, and duration?
  • Do the employees share the same supervisor or manager?
  • Do the employees have similar job performance evaluations or ratings:
  • Do the employees have a similar disciplinary history?
  • Are the employees approximately the same level of experience?

Can you provide an example of a court addressing the similarly situated employee issue?

Best Wrongful Termination Lawyer Answer: Of course, that is what we do best. Employment attorneys will tell you that there are loads of examples because identifying similarly situated employees is a crucial part of proving disparate treatment. So, let’s look at a very recent case out of the United States Court of Appeals for the Eleventh Circuit, McNeal v. International Paper, No. 21-12672, 2022 WL 5434274, at *1 (11th Cir. Oct. 7, 2022). In this case, Lakeisha McNeal, a Black female, worked in International Paper’s shipping department. On March 29, 2016, the employer issued McNeal a written warning because she ran a “spot truck” out of fuel. After year with no discipline, the written warning fell off her record. On October 27, 2017, the employer issued McNeal a verbal warning for poor job performance, which also lapsed after a year of no discipline.

Starting on December 20, 2018, International Paper levied four disciplinary actions against McNeal within a year, resulting in her termination of employment on July 26, 2019. First, McNeal was given a verbal warning for failing to follow instructions regarding production issues. Second, the employer gave McNeal a written warning because she fell asleep while operating a forklift, which crashed into a safety barrier. McNeal was then suspended for three days for taking an unauthorized break contrary to department protocols. Lastly, International Paper fired McNeal under its progressive disciplinary policy because she failed to follow shipping instructions as part of loading a trailer.

There is no direct evidence of any race or gender discrimination. No comments or harassing pictures or texts about African Americans and/or women. Instead, McNeal sued for race and gender discrimination because she believed that white and/or male workers were given lesser discipline for the same or similar infractions. As discussed above, in order to prove this disparate treatment discrimination claim, McNeal needed to present evidence of similarly situated employees outside the protected class that were treated better.

Critically, this will be information that most employees will not have at the time of there termination or even when the claims are first brought – and that is fine. (Best Law Read: You Don’t Need All Evidence To Start A Discrimination Case). A knowledgeable and skilled employment discrimination lawyer will be able to get other employees personnel and disciplinary records during discovery to support the claims.

Unfortunately, in this case, that evidence never came. Primarily, McNeal focused on making one white man her similarly situated employee, but the United States Court of Appeals for the Eleventh Circuit wasn’t buying it:

McNeal proffered Tony Perkins, a white male who worked with McNeal, as a similarly situated comparator. According to McNeal, Perkins was treated better than her because he received six disciplinary actions before he was fired, while McNeal received only four before her termination. But her argument is contradicted by the record. Because of the progressive discipline policy in which incidents are removed from the count after twelve months, Perkins, just like McNeal, received four disciplinary actions within the year before he was terminated. Also, the comparison further fails as McNeal herself received six disciplinary actions, two of which were removed from her record under the policy. Therefore, McNeal has not met her burden in establishing that Perkins is similarly situated in all material respects.

Id. at *3. This was especially problematic for McNeal as it showed that she was essentially treated the same way as the white male under the progressive disciplinary process.

Not done, McNeal also made a slight effort to bring in two other former coworkers as comparators, but the Eleventh Circuit Court of Appeals rejected this too:

McNeal also proffered Terry Phillips, a white male, and Raymond Seals, a Black male, as similarly situated comparators who slept on the forklift and damaged the forklift without consequences. Apart from a brief description in her deposition, the record is absent of any other information relating to Phillips and Seals. McNeal also fails to provide information related to the timing of these incidents and the individuals’ disciplinary history. Without such information, the individuals offered by McNeal cannot serve as comparators. And without such comparators, McNeal cannot make a prima facie case of race or sex discrimination.

Id. (Best Law Read: What Does Prima Facie Mean?).

In our experience, the best way to improve your chances of establishing a similarly situated employee is to put forward as many as possible in order to give yourself as many opportunities as possible for the court to select at least on comparator.

How do I sue the company that I work at for treating Black employees worse than White employees?

Best Race Discrimination Attorney Answer: If you feel that your place of employment is treating you worse because you are Black or any other race, call the right attorney. Race discrimination includes being harassed, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, and denied wages base on the color of your skin. When you schedule a free and confidential consultation, you will meet with a race discrimination lawyer from Spitz, The Employee’s Law Firm who will help you determine the best way to pursue your legal claims. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Our Ohio, Michigan, and North Carolina race discrimination attorneys are here to fight for your rights.


The race and gender discrimination materials available at the top of this disparate treatment discrimination page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking: “Can my supervisor only discipline Black workers?”, “My manager is much harder on women”, “my boss is discriminating against me because I’m a Black woman,” or “How do I sue for disparate treatment of Hispanic workers”, your best option is to contact an experienced employment law attorney to obtain advice with respect to race discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney Brian Spitz, or any individual attorney.

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