My co-worker is treated better than me, is this discrimination?


In employment discrimination cases, an employee will often point to how their co-workers were treated more favorably than them as evidence of the employer’s discrimination.  For example, a female employee may have been passed over for a promotion in favor of a male employee who had less experience.

But not all instances of different treatment can be used to prove discrimination, as a federal court recently found in Hasting v. First Community Mortgage.  A federal judge in Tennessee dismissed a Title VII discrimination case because the plaintiff’s evidence of different treatment did not support her claim of discrimination.

The plaintiff was hired as Director of Human Resources at First Community Mortgage in October 2014 and resigned in January 2017. After she resigned, Hasting sued First Community Mortgage for discriminating against her on the basis of her gender and national origin (Hispanic). She pointed to examples of different treatment as evidence of discrimination, namely the existence of an unofficial “boy’s club” of all male managers and executives from which she was excluded, comments directing her to hire more women and minorities, and unwanted adjustments in the corporate reporting structure.

In a Title VII discrimination case, the plaintiff carries the initial burden of demonstrating they have a prima facie case of discrimination. As most cases do not contain much, if any, direct evidence of discrimination (for example, a supervisor saying “I am firing you because you are a woman”), circumstantial evidence is often used to support a claim of discrimination.  To use circumstantial evidence to support a claim of discrimination, a plaintiff must demonstrate that they suffered an “adverse employment action”.  In Title VII discrimination cases, an adverse employment action is defined as a “materially adverse change in the terms or conditions of employment.” An adverse employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. McMahan v. Flour Int’l, No. 3:17-01262, 2018 WL 4491133, at *3 (M.D. Tenn. Sept. 19, 2018).


Because she had no direct evidence of discrimination, Hasting pointed to circumstantial evidence of discrimination. Hasting’s central piece of evidence was that there was a so-called “Penis Club,” a “group of male only employees who got together, had lunches and discussed business with no females allowed.” Hasting had reported this club to her manager and expressed frustration that she was excluded. However, Hasting also testified that the group was not actually sanctioned by First Community Mortgage and she was not certain that they discussed business during these meetings. The judge found that Hasting had “not shown that the existence of practices of the Club affected the terms and conditions of her employment,” and therefore did not support her discrimination claim.


Hasting also alleged that Mr. Carlton had made comments to her about “adding color to the team” and the company’s website being “very white and all men.” Hasting said these comments offended her and harmed her “as an affront to [her] gender and culture.” However, the court found that these comments did not rise to the level of an adverse employment action, especially in light of the fact that Hasting testified that she took no issue with First Community Mortgage’s goal of hiring more women and minorities.


Additionally, Hasting’s statements during a pre-trial deposition undermined the possibility of using evidence of different treatment in support of her discrimination claim.  Hasting had testified that Mr. Carlton “knew about the Club,” but “not that he personally discriminated against her.” Hasting also responded “no” to questions about whether she thought that her supervisor had ever discriminated against her because of her gender or national origin, whether she thought that anything her supervisor every said to her was evidence of discrimination, and whether the supervisor ever indicated to her that a performance evaluation was retaliatory for something Hasting had said or did.


Even though the court acknowledged that the different treatment may have engendered valid feelings of frustration and offense in Hasting, the court ultimately found that they did not support her discrimination claim because Hasting had not demonstrated their effect on the terms and conditions of her employment.


Key Takeaways:

  • To demonstrate a prima facie case of discrimination under Title VII, a materially adverse employment action is employer conduct that substantially affects a term or condition of employment.
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