Discrimination case based on comparator evidence fails

One way to prevail in an employment discrimination case is to argue that you were singled out because of your race, and that others were not similarly punished for the same workplace misconduct. That's the strategy that the plaintiff pursued in this case, but the Court of Appeals disagrees, and the case is over.

The case is Bright-Asante v. Saks & Company, a summary order issued on May 14. Plaintiff was suspended from his position at Saks following an internal investigation that determined he had facilitated fraudulent purchases made with stolen credit card information. Plaintiff was arrested over this and suspended without pay. The charges were dropped on speedy trial grounds. 

So what's the case? Plaintiff points to a white co-worker, Susan David, who "processed transactions for the same imposter customer after imposter's transaction with Bright-Asante aroused the suspicions leading to the charges against him." Plaintiff says that Sak's failure to forward the video footage of David's actions to law enforcement, and its failure to suspend David over this, was unlawful discrimination.

Whataboutism may constitute bad logic in political debates, but the discrimination laws recognize that theory of discrimination. If two employees engage in the same or similar misconduct, and only one is punished, that selective punishment could have been motivated by race. The cases on this issue require that the misconduct be comparable and that the employees were all subject to similar workplace standards. I have seen courts address this issue differently: some courts want nearly identical misconduct for the issue to reach the jury, but other courts are more flexible and allow the jury to decide the issue. Most courts, though, want a close comparison. This is such a case, the Court of Appeals (Raggi, Parker and Carney) holds. The reasoning: 

Even if David’s transaction with the imposter raised suspicion of a further fraudulent transaction, the evidence did not implicate David in the fraud so as to admit an inference of race discrimination in Saks’s treatment of its employees. The transactions conducted by Bright-Asante and David were different in material respects. David did not take the customer into the private, closed-off area where Bright-Asante had gone. Further, David, unlike Bright-Asante, did not allow the customer to access the Saks register to input her Social Security number and email address; did not use her cell phone during the transactions; and did not take an unusually long time to process her transactions. Lisa Benson, a Saks executive who reviewed the CCTV footage at the time, explained persuasively that because of these differences in the transactions she did not find David’s actions in dealing with the impostor customer suspicious and therefore did not forward David’s footage to law enforcement.