Whenever someone gets into trouble, we’ve all heard one phrase at some point or another, particularly as a parent or child: "But So-and-so Is Doing the Same Thing!" 

That is, at its essence, an argument that is sometimes made in discrimination cases.The legal name for it is "similarly situated" but the concept it entails is that a company cannot treat two people who did the same thing differently because of race, age, etc. 

And so, when employees are disciplined (or perhaps fired) for engaging in certain behavior, they will sometimes claim that other co-workers (perhaps white, or male, or younger) engaged in the same activity and were not disciplined or fired.

A recent case out of the Second Circuit (based on a District of Connecticut decision) addresses that same point. 

In Billue v. Praxair, Inc. (download here), the Plaintiff argued that co-workers who engaged in similar activities were not disciplined in the same way. The Second Circuit held that the workers were not similarly situated.

The case, which was decided by summary order on November 20, 2008, isn’t groundbreaking.  The court merely emphasized that to be "similarly situated", the employees must be similarly situated in "all material respects".  Here, the court found that there were differences:

This [allegedly comparable] employee, who is white, left his delivery truck unattended for five minutes, with the rear trailer doors locked, within 100 yards of the defendant’s property, and under the surveillance of defendant’s security cameras. By contrast, plaintiff, who is African-American, urinated in a public parking lot along a highway, temporarily abandoned his truck for roughly 20 minutes while he shopped in a sporting goods store, and did not secure the truck pursuant to defendant’s protocols. Accordingly, we conclude that defendant’s conduct was materially different….

In other words, while both workers may have violated company rules, the plaintiff’s actions were simply different (and worse) than his co-worker.  

What’s the takeaway from this case for employers?

Employers should continue to enforce disciplinary policies evenly and in a fair manner. Circumstances may differ and courts will allow employers to make those distinctions, but make sure you, as an employer, can articulate the rationale behind those distinctions.

(H/T Wait a Second)