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The Phoenix from the Ash: Proving Discrimination by Comparators

40 Pages Posted: 3 Mar 2008  

Charles A. Sullivan

Seton Hall University - School of Law


Hidden beneath judicial and scholarly obsession with formal proof structures for individual disparate treatment cases is a simpler, more direct method of establishing discrimination. Taking the "disparate treatment" label seriously, I argue that "comparator" proof requires merely that the plaintiff identify a similarly situated person of another race or the opposite sex who was treated more favorably than plaintiff. Such proof is increasingly driving litigation in the lower courts, which suggests that comparators should be moved to center stage in the antidiscrimination project However, like other efforts, the comparator approach risks falling victim to the general hostility of the courts to discrimination claims The Supreme Court in Ash v. Tyson Foods, Inc. recently rejected an extreme "slap in the face" rule regarding relative qualifications of plaintiff and a comparator, but Ash left in place a network of other circuit court rules that collectively seem to require each comparator to be the almost twin of the plaintiff before more favorable treatment of him is a sufficient basis for the trier of fact to infer discrimination. The Court's latest decision in the area, Sprint/United Management Co. v. Mendelsohn, casts further doubt on the inflexible rule-orientation of many lower courts, requiring instead a holistic and contextual assessment of evidence. Nevertheless, fundamental judicial hostility remains intact.

This negative view derives from common judicial perceptions that random, and even irrational, factors are more likely explanations for workplace disparities than is discrimination. Thus, only when those factors are ruled out by an almost-twin comparator will the courts permit the inference of discrimination. Absent evidence to the contrary, the courts may be justified in using their perceptions of the relative probability of discrimination as opposed to other explanations to influence their determinations as to when a jury question is created. These "legislative facts" are traditionally within the purview of the courts.

Nevertheless, this Article contends that plaintiffs can counteract judicial perceptions, and create a jury issue, by introducing evidence both of the prevalence of discrimination generally and, more central to my thesis, by introducing expert testimony regarding comparators. Drawing on such sources as trade usage in contracts and professional standards of care in torts, this Article argues that a more objective standard should be substituted for current judicial worldviews. It recommends assessing the comparability of proffered comparators not by judicial instinct but by expert testimony about whether other employers would treat such individuals comparably to plaintiff.

Keywords: employment, discrrimination, mcdonnell douglas, price waterhouse, desert palace, ash, mendelsohn, expert witness, trade usage, business practices, comparator, similarly situated, slap in the face,

Suggested Citation

Sullivan, Charles A., The Phoenix from the Ash: Proving Discrimination by Comparators. Seton Hall Public Law Research Paper No. 1099595. Available at SSRN: or

Charles A. Sullivan (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973-642-8870 (Phone)

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