Comparison evidence is useful only when the people, conduct, decision-maker, policy, and time period are meaningfully comparable.
A coworker made the same mistake and was not disciplined. That can be important—or misleading.
Define the Relevant Similarity
A useful comparator may share the same role, supervisor, policy, conduct, history, decision period, evidence, and decision-maker. Exact identity is not required, but material differences must be addressed. A name alone is not a comparator analysis.
Process as Comparison
Sometimes the strongest comparison is not another worker but the employer’s own process. Did it ordinarily investigate before discipline? Allow a response? Use progressive steps? Review accommodations? Calibrate scores? Permit correction? A sudden departure after protected activity may matter.
Exceptions and Discretion
Who could waive the rule? Who received exceptions? Were standards changed? Did the employer apply discretion more harshly to the worker? A facially neutral process can conceal selective inputs or selective enforcement.
Records and Access Limits
Workers often lack lawful access to comparator files. Preserve what is legitimately known: public information, shared policies, firsthand observations, messages, or agency records. Do not take confidential personnel records or publish coworker identities.
Employer Defenses
The employer may show material differences in severity, history, role, decision-maker, timing, or proof. It may also show that the comparator was treated similarly once the full record is known. A credible analysis lists similarities and differences rather than declaring “same situation.”
A Comparator Table
Use columns:
- relevant rule;
- worker’s conduct;
- comparator conduct;
- history;
- decision-maker;
- outcome;
- evidence;
- material differences; and
- unknowns.
Charge-process Use
Position statements often introduce comparator claims or deny comparability. Identify exactly what the employer says, request focused supporting information where appropriate, and respond with source-based differences. Do not speculate about confidential records.
Unequal process is often more persuasive when tied to a clear protected-activity and knowledge timeline. It is not a substitute for those elements.
Related Reading
Practical Guide
Build the Proof: Timeline, Knowledge, Causation, and Pretext — Long-form visitor guide for this stage of the problem.