Proving Workplace Discrimination Through Comparative Evidence

When trying to prove a discrimination claim, the so-called comparative evidence can be quite useful in establishing that the employer engaged in an unlawful discrimination practice. Comparative evidence is “evidence that the claimant was treated differently from others who were similarly situated” but are outside the plaintiff’s protected class. (Guz v. Bechtel National, Inc. (2000)) Evidence that an employer treated “similarly situated” employees outside the plaintiff’s protected class more favorably is probative of the employer’s discriminatory or retaliatory intent. (McDonnell Douglas Corp. v. Green (1973)) [evidence that elevant white employees who engaged in comparable conduct were retained or rehired while the plaintiff, who is black, was laid off].)

To be probative, comparative data . . . must be directed at showing disparate treatment between employees who are "similarly situated" to the plaintiff in all relevant respects. In general, “individuals are similarly situated when they have similar jobs and display similar conduct.” (Vasquez v. County of Los Angeles (9th Cir. 2003); Wills v. Superior Court (2011) 195 Cal.App.4th 143, 172.)

Thus, one common way to prove discrimination is to show that your colleagues, who have the same or similar title and pretty much do the same work, were punished less harshly or not punished at all for the same alleged violations, mistake, or misconduct for which you were terminated. While this alone might not prove a discrimination case against the employer, it can be useful in conjunction with other pieces of evidence. Establishing comparative evidence requires showing that the same managers who terminated you for your alleged violations were actually aware of similar violations of others and didn't do much or anything to discipline those other workers. If the managers in questions didn't know about those other violations, they, of course, can't be charged with treating you differently.