September 2014 Volume XIII No. 10 Taking Care of Business
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Employees With Different Job Titles, Duties, and Levels of Work Experience May Still be “Similarly Situated” for Purposes of Employment Discrimination Claims.

Federal law prohibits discrimination based on a person’s status as a member of a protected class. One element that a plaintiff must establish to prevail on a discrimination claim is that a “similarly situated” individual who was not in the protected class was treated more favorably than the plaintiff. Although “similarly situated” employees often have the same supervisor, title, and/or job duties, differences in job duties, title, and length of employment are not, on their face, enough to defeat a claim that the two employees are similarly situated.

Federal law prohibits the creation of a hostile work environment and discrimination based on an employee’s gender, race, ethnicity, religion, national origin, age, and/or disability. The law also prohibits retaliation against an employee for complaining about a violation of federal employment discrimination laws. While proving these claims can sometimes be difficult for plaintiffs, claims that do survive summary judgment expose the employer to significant damages, including attorney’s fees. Employers must take care to avoid creating and harboring a hostile work environment, and must ensure uniform treatment of all similarly situated employees. Recently the Seventh Circuit addressed hostile work environment, retaliation, and sex discrimination claims, and held that differences in job duties, hierarchy, and employment longevity between two employees are not, on their face, enough to defeat a claim that the two employees are similarly situated.

In Orton-Bell v. State of Indiana, the plaintiff was a substance abuse counselor at a state-run maximum security prison, and had held her position for approximately two years. She engaged in an extramarital affair with a male employee, a Major in charge of custody at the prison and a twenty-five year veteran of the department of corrections. The pair engaged in sexual activities at work, and also used their work email accounts to coordinate meetings for sex and to exchange sexually charged messages. After the Superintendent of the prison learned of the affair, and after Orton-Bell and the Major both admitted to it (despite differing accounts), both were terminated and both appealed their terminations. The Major was permitted to resign, retain all of his benefits, including his pension, and transition to a role working at the same prison as a contractor instead of as an employee. Orton-Bell’s appeal was denied, and she was significantly delayed in receiving unemployment benefits, though the Major received his without such delay. Orton-Bell filed suit, claiming discrimination on the basis of sex.

In addition to the discrimination claim, Orton-Bell also raised a claim of hostile work environment based on rampant and pervasive sexual comments by male co-workers and superiors, and based on these same superiors and co-workers observing Orton-Bell receive pat downs when she entered the prison and commenting in a sexually suggestive manner. Orton-Bell also raised a hostile work environment claim based on the Superintendent’s awareness and indifference to the fact that night shift staff used Orton-Bell’s desk and office for sexual intercourse. Finally, Orton-Bell made a retaliation claim based on her termination after she complained to the Superintendent about the night-shift staff using her desk and office for that purpose. The district court granted summary judgment to Orton-Bell on all claims. On appeal, the Seventh Circuit reversed the summary judgment on the hostile work environment claims based on the comments made by Orton-Bell’s co-workers, and on the sex discrimination claim. The court affirmed summary judgment on the other claims.

The appellate court affirmed summary judgment on the hostile work environment claim based on the use of Orton-Bell’s office for sex because there was no evidence that the Superintendent was indifferent to this practice because Orton-Bell was female. While the conduct was certainly severe and pervasive, there was no evidence that it was based on her being a woman. The court also affirmed summary judgment on the retaliation claim for the same reason, as Orton-Bell’s complaint about the use of her office was not based on her gender, but on the nature of the conduct that took place there.

With regard to the hostile work environment claim based on the sexually charged comments of other employees toward Orton-Bell and their observation of her during the pat-downs, the court reversed summary judgment for the state, on the grounds that there was evidence that the comments were pervasive, both objectively and subjectively offensive, and were based on Orton-Bell’s sex. Orton-Bell complained about the conduct, but the employer did not take action to address the complaint.

Finally, the Seventh Circuit reversed summary judgment on the discrimination claim, finding that Orton-Bell was a member of a protected class, that she met her employer’s legitimate expectations, that she suffered an adverse employment action, and most importantly in the context of the development of the law in the area of gender discrimination, that she and the Major were similarly situated employees that were treated differently. The court explained that similarly situated employees typically deal with the same supervisor, are subject to the same standards, and engage in similar conduct without differentiating or mitigating circumstances that would distinguish the employer’s treatment of the two individuals. In the Orton-Bell case, Orton-Bell had two years of service, compared to the Major’s twenty-five. Orton-Bell was a counselor while the Major was in charge of custody of the inmates in the maximum security prison. Their job duties did not overlap. However, the court nonetheless held that for purposes of the discrimination claim they were similarly situated employees. Both were terminated by the Superintendent (i.e. the “same supervisor”). Both were terminated for violating the same standards. Finally, both appealed their termination. The Seventh Circuit did not view the above-referenced distinctions between the two employees as determinative for purposes of the discrimination claim. The court reversed the summary judgment for the state, finding that its treatment of the Major was very different than its treatment of Orton-Bell.

The Seventh Circuit’s analysis in Orton-Bell illustrates a critical concern for employers forced to address similar conduct by two employees that do not, at first glance, appear to be similarly situated. The court explained that despite the Major’s much longer service record and much higher level of responsibility, the state could not simply rely on these distinctions alone to determine that he was not similarly situated to Orton-Bell. Although the state may have desired to reward the Major for his lengthy service by allowing him to resign and keep his benefits, it did so at the risk of opening the door to a discrimination claim by Orton-Bell. The critical factors were not the length of service or job responsibilities, which the Seventh Circuit held made the Major’s indiscretion that much more egregious. Rather, the critical factors were whether the two employees engaged in the same conduct and were treated differently under the application of the same standard.

Employers faced with a similar scenario should take care not to place too much emphasis on factors such as length of service and job duties, while ignoring the fact that the employees at issue engaged in the same or similar conduct. Employers must recognize that the analysis of whether two employees are similarly situated is directly tied to the nature of the claim of discrimination, and it is the nature of that claim that will guide the determination of what factors are important to the analysis in a particular case.


If you have questions regarding employment discrimination, or other similar issues, please contact your Hoeppner Wagner & Evans LLP relationship attorney or visit our website at www.hwelaw.com.


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