Comparators in Federal EEO Disparate Treatment Cases: How to Identify and Use Them Effectively
The Crucial Role of Comparators in Disparate Treatment Cases
In federal sector equal employment opportunity (EEO) complaints, few elements are as vital—and as complex—as comparators in disparate treatment claims. At its core, a disparate treatment allegation asserts that an individual was treated differently because of a protected characteristic such as race, gender, age, or disability. To substantiate such a claim, identifying and analyzing comparators is foundational.
Unfortunately, many EEO investigators struggle with how to frame comparator-related questions effectively. The key is to anchor those questions in the specific allegations outlined in the complaint.
Understanding The Comparator Concept
A comparator is typically another employee who is similarly situated to the complainant in all relevant respects but does not share the complainant’s protected characteristic. The central premise: if individuals outside the protected group were treated more favorably under similar circumstances, such differential treatment may suggest unlawful discrimination.
Under the Equal Employment Opportunity Commission (EEOC) framework for federal sector complaints, comparators are an investigative tool to uncover potential inconsistencies or biases in personnel decisions such as hiring, promotion, discipline, or termination.
Why Comparators Matter
Comparators are essential for meeting the initial burden of proof under the McDonnell Douglas burden-shifting framework. A complainant must demonstrate:
- Membership in a protected class;
- An adverse employment action;
- Qualification for the position or task in question;
- That similarly situated individuals outside the protected class were treated more favorably.
Without comparator data—or a very strong alternative evidentiary basis—a claim may fail to clear the first legal hurdle. Moreover, if a Report of Investigation (ROI) fails to document comparators adequately, it may be deemed deficient by an Administrative Judge or Final Agency Decision (FAD) writer.
For EEO counselors and investigators, comparators are key to structured fact-finding. Because complainants are not expected to understand disparate treatment theory, investigators must guide them in identifying appropriate comparators. Are the employees truly similar in duties, supervision, performance, and disciplinary history? Robust comparator analysis reduces speculative claims and surfaces legitimate concerns.
Agency officials often assert that “no one else was treated differently,” but such claims may not hold up to scrutiny. Management, like complainants, needs guidance in identifying comparators. When agency officials are prompted to distinguish the complainant from others, they must articulate legitimate, non-discriminatory reasons.
Challenges in Comparator Identification
Determining who is “similarly situated” can be challenging. Variations in tenure, performance, or job duties may justify different treatment—or serve as a pretext. Effective analysis requires contextual nuance.
Formulating effective comparator questions can be particularly difficult in written interrogatories, where contextual cues are limited. Interviews allow for real-time adjustment based on new information.
Example: Denial of Leave Based on Race and Age
Interrogatory:
To explore whether others were treated differently in similar leave denial circumstances, consider asking:
- Do you know of any employees under Mr. Doe’s supervision who requested leave the day before Memorial Day?
- If yes:
- Name, title, race, age
- Was leave approved?
- Why do you believe their leave was approved?
- If yes:
Questions for the responsible management official (RMO) should mirror the information above and probe deeper:
- Did any other employees under your supervision request leave the day before or after Memorial Day?
- If yes:
- Name, title, race, age
- Was leave their approved?
- How did their circumstances differ from Complainant’s?
- Why was coverage not a factor?
If the RMO said no other employees requested leave before or after Memorial Day, probe further by asking:
- Were others approved for leave before/after holidays during the past year?
- If yes:
- Name, title, race, age
- Why was coverage not an issue in those cases?
Key Takeaway
Comparator questions must evolve based on the information provided. Effective investigation means not just asking the right initial questions—but knowing when and how to follow up.
Read on to part two, which covers an EEOC decision that illustrates the real-world impact of effective comparator analysis.