Abstract
Title VII promises to protect employees from discrimination based on race, color, religion, sex, or national origin. However, for plaintiffs who assert claims on the basis of more than one identity, that promise often falls apart in court. This Note argues that the comparator requirement is part of the issue. Courts often demand that plaintiffs point to a "similarly situated" coworker who both was treated better and resembles the plaintiff in almost every respect but for the protected trait. Because antidiscrimination doctrine most commonly analyzes race and sex as separate, non-overlapping categories, intersectional plaintiffs face an evidentiary bind: Comparators available to them rarely account for the compounded nature of their experience of oppression.
This Note examines how the comparator requirement renders intersectional discrimination doctrinally invisible by forcing a plaintiff to disaggregate identities that operate together. It argues that courts should transition from rigid comparator requirements toward a holistic evidentiary approach, using the Eleventh Circuit's "convincing mosaic" standard as a model. By reminding courts to weigh the totality of the circumstances rather than demanding a perfect comparator, this approach would better equip Title VII to protect plaintiffs whose identities cannot be split along a single axis.
Citation
Virali Patel,
Moving Beyond Comparators: Rethinking Title VII Intersectional Claims,
76 Duke Law Journal
291-328
(2026)
Available at: https://scholarship.law.duke.edu/dlj/vol76/iss2/3