Favorite Irish rocker Sinead O'Connor had a beautiful hit in 1990 with "Nothing Compares 2 U". But Sinead missed the deeper truth that comparing people can be beneficial in employment law.
For example, when an employee engages in misconduct and the boss wants to terminate the relationship, a key data point is finding out whether coworkers who engaged in the same behavior – someone who compares "2 U" – suffered the same consequences.
It is not just an issue of fairness and consistency, the question also can ferret out illegal discrimination.
That's a lesson Suncor Energy learned recently in Tracy v. Suncor Energy (U.S.A.), Inc., denying summary judgment to the employer on an age discrimination claim, even though an investigation showed that the plaintiff, a team lead, was involved in an illegal scrap metal recycling scheme at work (allowing used tools and supplies to be recycled for cash, without company authorization).
Suncor Energy fired the older manager involved in the scheme but did not terminate a younger, 36-year-old manager, who did the same thing. That was enough of an inconsistency for a federal court judge in Colorado to conclude that a jury could find that the employer had treated the plaintiff unequally because of age.
This is Employment Law 101: if a fact is good enough to be the reason for terminating an employee in a protected class (in this case age 40 or over), then the employer better be able to show "equal treatment" of all workers who did the same thing, including those outside the protected class.