In a case of sex discrimination, how does a female employee show that a male was treated more favorably? And if the company gives multiple reasons for its action, does that make its explanation pretextual? A federal court sitting in Texas recently faced that issue.

What happened. “BR” went to an out-of-town business meeting for her job with a healthcare company. At the meeting, she appeared intoxicated at a networking event, so two co-workers brought her back to her room. As they left, BR grabbed the hair and neck of one of them and forced her to the ground. They reported the event, and BR was fired for the assault.

She sued for gender discrimination, claiming that a male co-worker who became drunk at the conference, overslept, and missed a meeting had not been terminated, and that the company’s reasons for the discharge were pretextual because it had differed in statements it provided to the Equal Employment Opportunity Commission (EEOC), the Texas Workforce Commission (TWC), and in pretrial deposition. The employer asked the court to dismiss the case.

What the court said. In order to prove discrimination, BR had to show, among other things, that a similarly situated employee outside the protected class was more favorably treated. The court said that she was unable to show more favorable treatment of a similarly situated employee outside the protected class because she had to show that his conduct was “nearly identical” to hers.

Here, the assault of a co-worker was not “nearly identical” to a male employee’s missing a meeting after over-sleeping. And, the employer had a legitimate business reason for its action, and she was unable to show that the company’s “inconsistent” explanations made its reason pretextual. The company had stated in deposition that the only reason for the termination was the assault; it told the EEOC that it fired her “for exhibiting inappropriate behavior at a company-sponsored event and for assaulting a fellow employee”; and the TWC that she had been fired after she became “visibl[y] intoxicated and both physically and verbally assaulted some of the fellow employees.” The court found no merit in that argument because every explanation said that she was terminated because she assaulted a co-worker. Rhodes v. Curascript, U.S. District Court for the Southern District of Texas, Civil Action No. G-07-192 (9/30/08).

Point to remember: It’s important for HR to give similar, consistent explanations for its actions in every context for which an explanation is required. Here, even though the company’s reasons were sufficiently similar and consistent, the minor inconsistencies in its statements gave a disgruntled discharged employee more ammunition to use in court.