The Institute Releases "Cracking The Comparator Code"

By Matthew C. Koski posted 12-11-2012 05:46 PM

The Employee Rights Advocacy Institute For Law & Policy (The Institute), NELA’s related charitable public interest organization, is pleased to announce the publication of Cracking The Comparator Code, the third article in The Institute’s Summary Judgment Toolkit Series, an activity of the National Litigation Strategy Project (NLSP). A copy of the article may be downloaded here.

The NLSP seeks to reform summary judgment practice so that individuals challenging workplace violations actually have their day in court. To help workers and their advocates defeat unwarranted summary judgment dismissals, The Institute publishes the Summary Judgment Toolkit, a series of white papers on legal strategies identifying and addressing so-called “problem doctrines”—analytical shortcuts that courts use in employment litigation to grant summary judgment at a higher and disproportionate rate compared to other types of cases.

Cracking The Comparator Code examines how courts have altered comparator evidence standards over the years, and suggests ways in which employee rights advocates can avoid having their cases derailed by these unwieldy requirements. The article provides analysis and practical tools, including model briefing language, to both challenge the rationale supporting heightened comparator requirements and to support the proper use of comparator evidence. The article explores whether comparator evidence is required to make a prima facie case for discrimination; whether plaintiffs should ever be required to present “identical” or “nearly identical” comparators; and whether the probative value of comparator evidence is best determined by a jury.

This most recent installment in the Summary Judgment Toolkit was written by Matthew C. Koski, The Institute’s Paul H. Tobias Attorney Fellow, with contributions from members of the NLSP Task Force. Matt also is the author of the first two articles in the Summary Judgment Toolkit, Securing The Right To A Jury Trial: Attacking “Stray Remarks” At Summary Judgment and Preserving The Right To A Jury Trial By Preventing Adverse Credibility Inferences At Summary Judgment. Please visit the NLSP page of The Institute’s website for more information.

The Institute’s work, including the NLSP and the Summary Judgment Toolkit Series, is made possible thanks to the generous support of our visionaries of employee rights—individuals, families, law firms, foundations, coalition partners, NELA Affiliates, and other allies. Please consider your own your tax-deductible contribution to The Institute. You may donate online or by contacting Leah A. Hofkin, The Institute’s Director of Development (Tel: (415) 296-7629; Email: