Finding a “comparator”….

If you are the parent of more than one child I am guessing that at some point you heard loud complaints from Child A that Child B was treated more favorably.  If you are the parent of more than one child and have never had to deal with such an issue, you may go directly to heaven right now.  For us mortals who have to adjudicate such claims, it might be helpful to look at “comparators” the way the courts look at them.

This came up in the case of Ross v. Judson ISD, which we introduced you to on Monday.  On Monday we pointed out the problem that Ms. Ross had in arguing that she was the victim of race and sex discrimination, since she was replaced by someone of the same race and same sex.  However, she had another avenue to pursue. If she could show that she was treated less favorably than someone who was “similarly situated” then she might have a case.  So she searched for “comparators”—employees who were of a different race or sex, similarly situated, but treated differently.

This case shows us how difficult it is for a plaintiff to find a genuine “comparator.”  The person must 1) hold the same or similar job responsibilities; 2) share the same supervisor; 3) have essentially comparable violation histories; and 4) have engaged in “nearly identical” conduct as the plaintiff. 

Ms. Ross did her due diligence, identifying 11 possible “comparators.”  The court eliminated five of them based on that first factor--they did not hold the same kind of job.  The court only considered the six people who had served as either principals or vice principals. Like Ms. Ross, they had engaged in inappropriate conduct that led to an adverse employment action. But their conduct was not “nearly identical”:

Of the remaining six….their conduct included covering up a teacher’s inappropriate conduct with a student, requiring teachers to change students’ grades, “failing in leadership,” and violating unspecified JISD policies and practices. Their conduct was not “nearly identical” to Ross’s conduct, which involved financial mismanagement, inappropriate fundraising, inappropriate alcohol use, and misuse of funds and work time.

Notice that all of the “comparators” were charged with serious misconduct, but because it was not “nearly identical” conduct, they were rejected as “comparators.”

So in our efforts to help you with your parenting, we would suggest that you inform Child A that Child B is not a good “comparator” because Child B has not engaged in “nearly identical” behavior.  See how that works, and let me know.

We’ll wrap up this case tomorrow when we focus on the age discrimination claim.


Tomorrow: What is a significantly large age gap?