In Gupta v. Trustees of the California State University, the Court looked at when comparator evidence may be used. The Court first noted that comparative evidence is “evidence that the plaintiff was treated differently from others who were similarly situated” but are outside the plaintiff’s protected class.  Evidence that an employer treated “similarly situated” employees outside the plaintiff’s protected class “more favorably” is probative of the employer’s discriminatory or retaliatory intent. To be probative, the comparative data must be directed at showing disparate treatment between employees who are “similarly situated” to the plaintiff in all relevant respects. In general, individuals are similarly situated when they have similar jobs and display similar conduct.  The defendants indicated that plaintiff should have to show that she was “clearly superior” to the other worker before allowing her to present evidence regarding the other worker.   The Court rejected that argument. It reiterated well-settled law that for comparator evidence to be probative, and therefore admissible at trial, all that is required is for the comparator, who was treated more favorably, to be “similarly situated” to the plaintiff “in all relevant respects.”

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