Title VII of the Civil Rights Act of 1964 generally prohibits covered employers from taking adverse actions against employees on the basis of race, sex, and other protected categories. Employee discipline is often the subject of Title VII claims, as plaintiffs attempt to prove that they were unlawfully subjected to more harsh discipline than other employees. Such a disparate discipline case recently came before the U.S. Court of Appeals for the Fourth Circuit, entitled Jones v. Eli Lilly and Company (4th Cir., July 2, 2025). Based on the facts of the case, a panel of three judges on the Court found in favor of the employer where the plaintiff lacked evidence to show sufficient similarity between herself and another comparator employee outside her protected category who received less severe discipline.
Jones was employed by Eli Lilly as a senior sales representative. On several occasions during her employment, she received negative feedback about the quality of her sales calls and failure to engage in “pre-call planning.” As the frequency of these criticisms increased, Jones was given a negative annual review and placed on a performance improvement plan. Jones complained to a Human Resources representative with the company about these actions, and within two months she was placed on probation for continuing performance deficiencies. Jones subsequently filed suit against Eli Lilly for race and sex-based discrimination and retaliation. However, the district court granted summary judgment dismissing these claims. Jones then appealed to the Fourth Circuit Court of Appeals.
Jones argued that she was disciplined more severely than a White male coworker, even though both employees had allegedly exhibited performance deficiencies. In analyzing this claim, the Court cited earlier caselaw for the proposition that “the similarity between comparators and the seriousness of their respective offenses must be clearly established in order to be meaningful.” The Court then noted that while Jones’ record of sales call performance problems had persisted for several years involving repeated admonishments, most of her comparators’ deficiencies were unrelated to customer issues. Indeed, the evidence showed that, unlike Jones, the comparator employee had received praise for his pre-call planning and customer skills. Jones also failed to demonstrate that the comparator’s shortcomings were of a similar duration to Jones’ poor performance record. Consequently, the Court concluded that because Jones and her comparator were not similarly-situated, Jones failed to establish a claim of race or sex discrimination based on disparate discipline. The dismissal of summary judgment in favor of Eli Lilly was thus affirmed.
The Fourth Circuit decision is instructive to employers with regard to how the courts analyze comparator employees in disparate discipline cases. A comparator must truly be similarly-situated to the plaintiff, and factors relevant to that analysis include:
- Whether the plaintiff and the comparator violated the same work rule or exhibited the same type of performance deficiency;
- Whether the deficiencies of the plaintiff and the comparator occurred within the same time period;
- Whether the plaintiff and the comparator have similar job duties, experience, and qualifications;
- Whether the plaintiff and the comparator were supervised by the same manager and worked within the same department or chain of command;
- Whether the decisions to take disciplinary action against the plaintiff and comparator were made by the same manager.
While the burden lies with the plaintiff in disparate discipline cases to prove that a similarly-situated coworker outside the plaintiff’s protected class received less harsh discipline, employers should be conscious of the need to maintain consistency in the application of their work rules when taking disciplinary action. That is, applying the same level of discipline for like-offenses under similar circumstances. Otherwise, employers’ disciplinary decisions are more likely to be challenged and may be more difficult to defend. Before taking adverse employment action in situations involving comparator analysis, employers are prudent to consult with experienced employment counsel.
