THE SIMILARLY SITUATED INDIVIDUAL - EVIDENCE OF COMPARABLE EMPLOYEES AND ITS APPLICATION IN EMPLOYMENT DISCRIMINATION LITIGATION

Plaintiffs who seek to establish claims of employment discrimination t hrough the use of circumstantial evidence commonly rely upon allegatio ns that the employer has treated other, similarly situated individuals , outside of the plaintiff's protected class more favorably. Whether o r not two employees are in fact similarly situated therefore becomes a question that employers must address, both in making day-to-day emplo yment decisions and in defending against employment discrimination cla ims in court. This article examines this issue in some detail, making use of recent court decisions in reviewing the ways in which courts ha ve applied the similarly situated individual issue to the three-part, burden-shifting analysis developed by McDonnell Douglas Corp. v. Green and Texas Department of Community Affairs v. Burdine, the evidentiary burdens that the plaintiff must overcome to prove the existence of si milarly situated individuals, the various definitions that courts have accorded to such individuals, and the factors that courts look to in order to determine whether two employees are indeed similarly situated .