The determination of who is “similarly situated” is critical to the outcome of a discrimination case. It is the agency’s burden to prove that its calculations are correct and based on appropriate pools for comparison. The most obvious and common avenue of defense for a contractor is to challenge the construction of the pools used in the discrimination analysis. In order to successfully mount this kind of challenge the contractor has to know how to look at the individuals or groups offered for comparison to determine if they are “similarly situated.” The soundness of the discrimination finding depends on understanding which individuals should be consider equally eligible for a particular employment outcome. The purpose of this article is to provide some food for thought concerning what to look for in determining who is similarly situated in termination and promotion cases.

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