Employment discrimination can be challenging to prove. Employers rarely state or document that they are punishing an employee because of their race, sex/gender, religion, sexual orientation, ethnicity/national origin, etc., but the discriminatory intent and the harm are just as real. If you have endured illegal workplace discrimination at your New York job, a knowledgeable New York employment discrimination lawyer can go over with you the ways of proving your case and how best to achieve your objectives.
Using “comparator” evidence involving similarly situated coworkers is one viable way to advance an employment discrimination case. If, for example, you can identify a coworker (or coworkers) who were “similarly situated” to you in relevant ways except for membership in your protected class and you have strong evidence that your employer treated those colleagues more favorably than you, then you may use that proof as the foundation for advancing your discrimination claim. Employers often do not engage in blatantly obvious discrimination (such as expressly saying “I’m firing you because you are pregnant” or “I’m demoting you because you are gay”), so employees often need indirect forms of proof, and comparator evidence can be an effective method for meeting that evidential need.
A recent case from Manhattan offers useful insight into when you are (and are not) required to present comparator evidence.
The employee, O.S., was an Israeli man who worked for a New York-based antique rug seller. The employee alleged that he endured decades of discrimination and harassment because of his national origin, which culminated in his discriminatory firing in September 2024.
The employee’s lawsuit alleged numerous claims of national origin discrimination and hostile work environment in violation of the New York State Human Rights Law and the New York City Human Rights Law.
The employer asserted multiple arguments for dismissing the employee’s lawsuit. One of those was that the employee failed present “similarly situated employees of a different protected category who were treated more favorably than plaintiff.”
What you should also understand, and what the court held in O.S.’s case, is that the law does not demand that a plaintiff present comparator evidence; it is merely one of the options available to you for establishing that you were the victim of illegal workplace discrimination. O.S.’s employer made that mistake, arguing erroneously that O.S.’s failure to present comparator evidence should automatically result in the court’s dismissal of the employee’s case.
As the court explained, an employee is required to present comparator evidence if he advances his case based on alleged disparate treatment and his case lacks “other direct factual allegations supporting her claims.” In O.S.’s case, he did offer other direct factual evidence that supported her claims. Under those conditions, comparator evidence is not a required element of the employee’s discrimination case, and O.S.’s failure to present it was not a legitimate basis for the dismissal of his lawsuit.
If you decide to use comparator evidence, it is important to be sure you correctly identify who is (and is not) similarly situated to you. Using comparator evidence may require an in-depth analysis of factors such as their (and your) job duties, qualifications, experience, work performance history, and more.
Whether or not you rely on comparator evidence, success often is the culmination of many choices and decisions. As you pursue your case, having skilled legal representation can enhance your odds of success. The knowledgeable New York employment discrimination attorneys at Phillips & Associates, PLLC, are here to help New York employees who have been victimized by illegal discrimination. To find out more, contact us online or call (866) 229-9441 to set up a free and confidential consultation today.