“Supreme Court’s Denial of Certiorari in Hervey Leaves Circuits Not ‘Similarly Situated’”

To establish a violation of Title VII of the Civil Rights Act of 1964 (Title VII), must a plaintiff show that a similarly situated person outside of the protected class committed exactly the same offense, but was disciplined less severely? Courts often must address this question to determine if a plaintiff has met his or her burden of production with respect to one element of the Title VII prima facie case: that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. A typical way in which a plaintiff meets this burden is by presenting evidence that he or she was treated less favorably than a “similarly situated” employee outside of the plaintiff ’s protected category. As discussed below, however, what it means to be “similarly situated” to a coworker can vary significantly from circuit to circuit.

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