A recent decision from the U.S. Court of Appeals for the Second Circuit held that statements concerning whether a potential employee is a “good fit” for a particular job are not necessarily legitimate non-discriminatory statements capable of protecting an employer from a discrimination suit. Frederick Abrams, an African American law enforcement officer, brought such a claim, specifically under Title VII and the Equal Protection Clause, against the Connecticut Department of Public Safety (DPS). Abrams, a member of the force since 1986, asserted management’s continual failure to promote him to an “elite mobile investigations unit” (known as, “the Van”) was due to racial discrimination. According to court records, Abrams had shown continual improvement throughout his time on the force, yet still failed to obtain a promotion to the mobile unit, despite applying for every job opening since 1998. http://hr.blr.com/HR-news/Discrimination/Racial-Discrimination/Race-discrimination-Dreaded-fit-comments-doom-case
DPS claimed that they did not promote Abrams for legitimate and non-discriminatory reasons. Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 252. First, and most notably, Abrams did not have a college education, unlike five of the eight officers promoted to the Van since 1998. Id. Secondly, Abrams, unlike other applicants, did not possess any special skills or talents that would substantially benefit the mobile unit, such as specialized EMT training or electronic equipment skills. Id. And finally, Abrams had a history of issues with his report writing, unlike those promoted before him. Id. The Defendants did concede that seniority often played a role in promotion to the Van, but it was not the only factor in determining who would be promoted. Id.
The detective chosen to fill the vacant Van position in late 2007 was a Caucasian male. Id. at 249-50. When Abrams’ current supervisor spoke to the Van supervisor about the promotion of this male over Abrams, the Van supervisor stated the chosen detective would “fit in” better and also acknowledged his college degree. Id. Abrams’ supervisor, when deposed, stated it “crossed his mind” that the Van supervisor’s statement could have been related to race. Id. This was also not the first time management utilized “fit-in” phrasing as one reason for not promoting Abrams. Between 2000 and 2004, another discussion occurred in which a then-member of the Van consulted during the hiring process stated that Abrams “did not fit in.” Id.
Abrams initiated his court action in April of 2007 by filing a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO). Id. at 250. In his complaint, he alleged the defendants discriminated and retaliated against him after the most recent promotion of two Caucasian detectives to the Van. After Abrams filed his complaint, the defendants permitted Abrams to ride with the Van, but he was typically unavailable to do so. Id. Abrams finally rode with the Van, for the first time, in June of 2007 after which he was not called to ride again. Id. Abrams stated other members of the Van made him feel as though he “did not belong” during this singular occasion. Id.
Then, in September of 2007, Abrams filed another complaint with the CHRO alleging retaliation and a hostile work environment. Id. He mentioned how he felt after his first ride with the Van, earlier that year. It was at this time that the defendant’s legal affairs department instructed the Van’s supervisor to maintain his distance and avoid contact with Abrams. Id. This lack of communication resulted in the unit’s failure to consider Abrams for any more “fill-ins” with the Van. This ignited Abrams and motivated him to file additional complaints in November of 2007 and March of 2008, alleging discrimination and retaliation based upon the failure of the unit to incorporate Abrams into investigations and a hostile work environment, respectively. Id. Additionally, in 2010, Abrams filed complaints with Connecticut Department of Safety’s Affirmative Action Office against his new supervisor, promoted in 2008. Id. at 250-51.
Amidst a sea of paperwork and complaints from Abrams’ coworkers that the plaintiff was making them feel “uncomfortable” in the workplace, Abrams was reassigned to the “Casino Unit,” pending an investigation of Abrams’ complaint filed with the Affirmative Action Office. Id. at 251. Abrams’ transfer allowed him to maintain his salary and status as a member of the law enforcement team, but his work focus switched from investigating “major crimes” to conducting background checks, all while managing a commute double that of his tenured position. Id. In December of 2010, Abrams was transferred to another city’s Major Crimes unit and remains at that location. Id.
Abrams’ complaints and the theory under which the recently decided suit was brought, accused DPS of racial discrimination and retaliation under section 1983 and Title VII. In 2012, the district court granted the defendant’s motions for summary judgment in relation to both of these claims. Id. at 252. The district court also granted summary judgment in favor of DPS as to the claim Abrams filed alleging retaliation by the DPS in assigning him to the Casino Unit. Id. The only claim that survived for trial was Abrams’ Title VII claim alleging retaliation in the continued denial of assignment to the Van after filing his CHRO complaints. The jury found in favor of DPS and Abrams appealed to the Second Circuit. Id.
The Second Circuit affirmed the jury verdict, but interestingly enough, denied in part the district court’s order of summary judgment. Id. In its opinion, the Second Circuit reviewed the framework for Title VII discrimination cases, made familiar by the landmark case of McDonnell Douglas Corp v. Green. 411 U.S. 792, 802-804 (1973). Under McDonnell’s framework, the plaintiff bears the initial burden of proof and must prove by a preponderance of the evidence a prima facie discrimination case. Id. The burden then shifts to the defendant to volunteer “legitimate non-discriminatory” reasons for its actions. Id. The ultimate burden of establishing that the defendant’s reason are a pretext for discrimination then falls on the plaintiff, thus rounding out the three-part framework. Id.
As to the first leg of the framework, the Second Circuit determined that a prima facie case of discrimination is established when the plaintiff proves: (1) he belongs to a protected class; (2) he was qualified for the position he sought; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that gave rise to an intrusion of discriminatory intent. Id. 252. Finding Abrams case undisputed as to elements (1), (2) and (4), the district court did not argue the third element. Id. They simply called it a “close case” and determined that whether Abrams could meet the third element was irrelevant, as he would not be able to demonstrate the defendant’s legitimate non-discriminatory reasons for not promoting Abrams to the Van were pretext for discrimination. Id.
The district court based their order of summary judgment on this finding. However, upon review, the Second Circuit found that the comments concerning whether Abrams would be a “good fit” for the Van were not hearsay and could, in fact, present a reasonable question of fact to be appropriately evaluated and decided by a jury. Id. The Second Circuit cited a similar Fifth Circuit case in which the court addressed the issue of “fit in” phrasing:
After all, a hiring official’s subjective belief that an individual would not “fit in” or was “not sufficiently suited” for a job is at least as consistent with discriminatory intent as it is with non discriminatory intent: the employer just might have found the candidate “not sufficiently suited” because of a protected trait such as age, race, or engaging in a protected activity. We hold as a matter of law that justifying an adverse employment decision by offering a content-less and nonspecific statement, such as that a candidate is not “sufficiently suited” for the position, is not specific enough to meet a defendant employer’s burden of production under McDonnell Douglas. It is, at bottom, a non-reason.
Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004), quoted in Abrams v. Dep’t of Pub. Safety, 764 F.2d 244, 253 (2nd Cir. 2014).
The Second Circuit applied the Fifth Circuit’s analysis to the facts at hand and found that the phrasing “better fit” or “fitting in” “just might have been about race,” when appropriately construing the facts in a light most favorable to the non-moving party. Id. at 253. The Second Circuit vacated the district court’s order of summary judgment as to both the Title VII discrimination claim against DPS and the §1983 claim, as it possessed parallel analysis.
While the Second and Fifth Circuits are the only circuits to directly address “fit-in” phrasing so far, it is not inconceivable that other circuits may not soon be faced with the same issue. The recent decision of the Second Circuit serves as a reminder to all management personnel and employees with hiring responsibility that blanket statements, including “good-fit” phrasing, will not alone protect an employer from a discrimination claim. Legitimate non-discriminatory reasons for not hiring or promoting an individual are not typically subjective. Subjective statements regarding whether a potential employee would “fit in” or “belong” are often left up to the interpretation of the listener, and based on that interpretation, leave room for the questions of fact juries are designed to analyze in a trial. The Second Circuit said it best: non-specific statements, such as these are “at bottom, a non-reason.” This reminder should motivate employers and hiring staff to think carefully about the words they are using and the reasons they are providing when declining to hire an applicant.
As with any rule, there are exceptions.
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