In my prior post, I emphasized the need to only group similar situated employees together. I should have mentioned another reason for this.
When defending a compensation discrimination claim, one of the initial battles that must be fought is over who are the proper comparators to the employee. In Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007), for example, the district court upheld the jury's verdict of discrimination saying that the jury could have based its decision on Ledbetter's comparison to the highest paid of four managers (one other was, of course, Ledbetter).
Understand that the battle is not over who is the proper comparator but who are the proper comparators. If there is more than one comparator, the court should not permit the employee to make a comparison to only the highest paid or a higher paid employees. There is ample precedent for this in discrimination decisions:
"A plaintiff who wants a court to infer discrimination from the employer's treatment of comparable cases has to analyze a goodly sample.” Kuhn v. Ball State Univ., 78 F.3d 330, 332 (7th Cir. 1996). Another court of appeals refused to permit a plaintiff to rely upon a single comparator in an Age Discrimination in Employment Act case explaining that courts cannot view a comparison to a single member of a protected class in a vacuum. Simpson v. Kay Jewelers, 142 F.3d 639, 645-47 (3d Cir. 1998). And in Bush v. Commonwealth Edison Co., 990 F.2d 928, 931 (7th Cir. 1993), the Seventh Circuit opined that "a black plaintiff cannot establish racial discrimination by singling out one white person who was treated more favorably when there were other white persons who were treated less favorably than other black persons.”
To get to the point, when employers group similarly situated employees together "on the same page" that makes it much easier for a revewing agency or court to agree that the comparison to the group not to just the highest paid individual is the appropriate comparison.
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