Just how specific do you need to be when explaining why you rejected a minority candidate multiple times for a job that did not even mean a pay raise? That is the question the United States Court of Appeals for the Second Circuit answered in Frederick M. Abrams v. Department of Public Safety, State of Connecticut, et al, (Dckt. No. 13-111-cv, August 26, 2014). As it turns out, employers should be very careful about basing a decision on a feeling that the candidate would not "fit in."
Abrams, an African-American, began working for the Department of Public Safety in 1986 and became a detective with the Major Crimes Unit in 1990. Major Crimes had three African-American detectives during the relevant time, out of a total roster of 30 detectives.
Not surprisingly, Major Crimes handled major crimes but not homicides. Homicides were the exclusive purview of the crime van (the Van), a subset of Major Crimes. Detectives in the Van were not paid any more than other Major Crimes detectives and may have worked longer hours, but it was considered an elite unit. The Van had no formal application process; interested detectives simply submitted their names and résumés when a vacancy occurred and Van leadership selected a candidate. Seniority was considered and a college degree was not required. Abrams was the only African-American detective to express an interest in assignment to the Van.
Between 2004 and 2009, the Van filled eight positions. Although Abrams submitted his name, the Van selected white candidates each time. Abrams had more training and seniority than all eight of the white detectives selected; however, five of the selected candidates had a college degree, which Abrams lacked. Abrams's supervisor, Wakely, personally recommended him for a position filled in 2007. When Wakely asked why Abrams did not receive the position, Captain O'Hara said that another candidate, Payette, was a "better fit" for the Van than Abrams and had a college degree. Wakely admitted that it "crossed his mind" that the "better fit" statement might relate to Abrams's race. On another, earlier occasion, someone involved in the selection process also said that Abrams "did not fit in."
Abrams raised concerns about potential race discrimination both to the Department's Affirmative Action Officer and eventually in September 2007, to the Connecticut Commission on Human Rights and Opportunities (CHRO). Following his charge, he continued to not be selected for Van positions, felt he was subject to a hostile work environment, and was reassigned—all of which he claimed was retaliation. Apparently, out of an abundance of caution, following Abrams's second CHRO charge, one of the Van decision makers was instructed to "keep his distance" from Abrams. Accordingly, given the informal nature of the selection process, the Van did not consider Abrams for subsequent vacancies. This led to the selection of a white candidate with similar qualifications but less seniority than Abrams.
Abrams filed a lawsuit alleging race discrimination and retaliation in April 2009. In March 2013, the district court granted summary judgment in favor of Defendants on all claims except the retaliation claim based on the failure to assign Abrams to the Van after he filed his charges of discrimination. In considering the record on the race discrimination claims, the district court excluded the statements about Abrams not "fitting in" on the grounds that they were hearsay and because there was insufficient evidence that the statements were based on race. The retaliation claim for the post-charge non-assignment went to the jury and resulted in a defense verdict. Abrams appealed both the summary judgment order and the jury verdict.
The Second Circuit affirmed the jury's verdict and the summary judgment order on the retaliation claims, but reversed the summary judgment on Abrams's claims for discriminatory nonassignment to the Van because of the "fitting in" comments.
The Court found that the "fitting in" statements were not hearsay because they were not offered to prove that Abrams did not fit in. The Court went on to consider whether the statements could support a reasonable inference of race discrimination. Given that at least one recipient of the statements, Wakely, testified that "it crossed his mind" that the statement was about Abrams's race, the Court found that a reasonable juror could conclude that the statement was related to race. The Court noted that the Fifth Circuit had previously held 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."
What can we learn from this decision?
First, employers need to be careful when they reject minority (or nonminority) candidates for reasons like he or she would not "fit in." This is especially true if the current team lacks diversity. Admittedly, the Department did not offer the court the "Abrams did not fit in" rationale—it articulated specific skills of the selected white employees, including that some had college degrees. However, the decision makers were apparently making comments about "fitting in" that the employer had to address in court, and those comments ultimately led to the reversal of summary judgment. While every employer recognizes that a new team member needs to "fit in," decision makers need to be careful that such rationales are not so vague that they could be interpreted as discriminatory. Are there specific instances of the candidate not getting along with the current team? Alternatively, did the interviewer just feel more comfortable with a nonminority candidate? The former may be a reason that could support summary judgment while the latter could easily be seen as conscious or unconscious bias in the selection procedure—which could lead you to a jury trial.
Second, just because the assignment does not include a pay raise does not mean its denial is not an adverse employment action. In this case, the Van was recognized as an elite unit even though it did not pay more and may have required longer hours. Even so, both the district court and the Second Circuit noted that it was a "close call" as to whether Abrams's failure to secure the assignment was an adverse employment action. (Neither court made the close call because they based their decisions on other grounds.) Employers need to remember that compensation is not the only term and condition of employment about which an employee can complain.
Finally, when dealing with current employees who file charges of discrimination, employers must be careful about how they treat them. In this case, the fact that the Department told one of the decision makers involved in the Van assignments to have no further contact with Abrams apparently led to the denial of summary judgment on one of Abrams's retaliation claims. Employers need to ensure that current employees who have become charging parties are not treated differently because of their complaints.
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