One
of the published CA6 decisions from today (Straser v. City of Athens) while not an employment decision,
exemplifies the principal that in comparing who is similarly situated, the
first question is disparity. The disparity issue is usually obvious when the
employees are of different races or sexes. The disparities are less
obvious when religion and retaliation are involved. The question there starts
with the principle that the comparators (those who are being compared too) must have been more favorably treated
because they were of a different religion or they had not engaged in protected
activity.
Here,
an Athens citizen didn’t like being told his carport violated the city’s 30
foot setback requirement. The city's attorney said they would not permit a variance because they "had had trouble with a Muslim” who too had violated the setback requirement. This was a disparity, the employee argued, because
he was a Christian and being used as an example.
The
Sixth Circuit disagreed, holding equal enforcement – being treated the same –
is not a disparity. "It’s equal treatment, indeed the epitome of equal treatment."
