Validity of comparators for claim of disparate treatment.

The plaintiff claimed that he was wrongfully terminated in violation of the NJLAD and sought to establish the claim by showing a disparity of treatment between himself and certain alleged comparators. In rejecting the plaintiff's evidential showing, the court noted that comparators "must engage in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or their employer's treatment of them for it." In comparing two incidents, the focus is on the criteria or qualifications used by the employer as the reason for the adverse employment decision. The court concluded that the two incidents identified by the plaintiff were not sufficiently similar to allow the other employees to be considered comparators. Further, the court concluded that one or two comparators, alone and without additional information, was insufficient at the pretext stage to sustain the burden of proof.

Case Law Alert - 4th Qtr 2012