Tuesday, January 20, 2015

For Those Employees Who Might Not “Fit In”

Smart employers know that there are some jobs where the ability to work cohesively with co-workers is important. Other jobs call for workers with complementary skills. It’s that intangible quality that some call “fitting in” for lack of a better description. Unfortunately, the term is so vague that employees might also argue that “fitting in” is just another way to discriminate.

In Abrams v. Dep't of Pub. Safety, an African-American police detective brought action against his employer, Department of Public Safety, for racial discrimination and retaliation.  The action arose after the employer failed to transfer Abrams to his preferred unit, a specialized, elite unit that investigates homicides and other serious crimes (the “Van”), and instead transferred him to the less desirable, Casino Unit.

Abrams has been employed with the Department of Public Safety since 1986 and has been denied assignment to the Van since 1998.  Although he was made detective in Eastern District Major Crimes Unit (“EDMCU”), where he has investigated serious crimes, that unit does not investigate homicides.  Van detectives do not receive a higher salary, additional benefits, or a change in title, however those assigned to the Van are considered to be the “best of the best of troopers.”  The Van consisted of eight detectives, all of whom were white.  All of the eight detectives possessed some specialized skills, five of which had a college degree.  Although Abrams does not have a college degree and has a history of poor reporting skills, a college degree is not a prerequisite for the Van and Abrams’ report writing showed significant improvement.  In addition, Abrams had more seniority and training than the other detectives chosen for the Van and Abrams was recommended by his superior. Abrams alleged in his suit that he was denied the assignment because of his race, arguing that the “fitting in” statements really referenced jis race.

Captain O’Hara, one of the police officers responsible for assigning detectives to the Van, told his colleague that the detective chosen over Abrams would “fit in better.”  At that colleague’s deposition, he testified that it “crossed his mind” that O'Hara's “better fit” statement might have had something to do with Abrams’ race.  When another white Van detective, was consulted about Abrams’ assignment to the Van, he too opined that Abrams “did not fit in.”

The District court granted summary judgment in favor of the employer but the 2nd Circuit reversed that on appeal. It found, among other things, that the statements about “fitting in” could potentially support a reasonable inference of discrimination, and it should be up to a jury to decide.

Employers should take note that comments about employees not “fitting in” or being “sufficiently suited” could give rise to a discrimination claim. Although many employers use the term to mean that the applicant or employee does not possess the right complement of qualifications or skills to enhance the department or workplace, employers must demand more of an explanation regarding recommendations for hire or assignment. It is important that those who make those selection recommendations to not rely on the simple phrase that the candidate doesn’t “fit in”, but should describe what qualities or skills the employee possesses or lack which makes him or her less qualified for the job. If that can’t be quantified or described, then the employer should reconsider whether there is a good (i.e. lawful) basis to deny the job.