No favorable treatment of ‘similarly situated’ individuals dooms gender discrimination claim

Title VII of the Civil Rights Act of 1964 forbids discrimination based on certain protected categories (e.g., gender) in any aspect of employment. Discrimination can present itself in the form of “hostile work environment,” “disparate treatment,” or the “disparate impact” of a particular employment practice. Disparate treatment cases involve claims in which an employee alleges she was treated worse than similarly situated coworkers based on a protected category (female). In other words, she claims her male coworkers are being treated more favorably. Not all different treatment is disparate treatment. How can an employer demonstrate that alleged more favorable treatment of some isn’t disparate treatment of another?

Setting the scene

Carrie Tavares worked as a chief supervisor for Asarco, LLC, a copper mine in Arizona. In February 2020, a new mine manager began working at the mine. At the time, Tavares was the only female employee at her level.

In March 2020, the mine manager received a report that Tavares had been sleeping on the job, which prompted an investigation into the allegations. Although the investigation corroborated some of the allegations, the mine manager determined there wasn’t enough evidence to discipline her.