This Article discusses the court’s misuse of the similarly situated concept. Part II is a short summary of the employment discrimination law, concentrating on the system developed by the Supreme Court for indirectly proving an individual disparate treatment case. Under the Supreme Court’s methodology, one way that a plaintiff may prove a prima facie case is to point to a similarly situated employee who the employer treated differently. Some courts, however, require a similarly situated showing as an element of plaintiff’s prima facie case. Part III discusses the problems with such a requirement. Part III.A briefly surveys the caselaw form the twelve federal circuits. Part III.B discusses the problems with imposing a similarly situated requirement as part of the plaintiff’s prima facie case. Such a requirement frustrates the purposes of a prima facie case and fails to account for the fact that the employer’s intent can be proven in a variety of ways. In addition, courts can always recognize distinctions between employees, sometimes making in unnecessarily difficult for a plaintiff to establish a prima facie case. Finally, such a requirement can improperly exclude certain types of employees from the protection of the employment discrimination laws.

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