“Won’t fit in” is No Defense in a Failure-to-Hire Action - American Society of Employers - Anonym

“Won’t fit in” is No Defense in a Failure-to-Hire Action

Generally when two or three candidates are in the final round of interviews, the question usually is not whether they can do the job but whether they can be successful in the organization.  Every culture is different, but the determination of “fit” is a subjective one.  Because of that subjectivity it is usually a terrible defense in a failure-to-hire case.

Abrams, an African-American male, joined the Connecticut Department of Public Security (DPS) in 1986. In 1990, he was made a detective in the Eastern District Major Crimes Unit (“EDMCU”), a division that houses more than thirty detectives working on major crimes other than homicides. Homicides, at least in part, are handled by the EDMCU's crime van (the “Van”), which has just six detectives. Although the six get the same pay as everyone else, the Van is still considered the “elite” unit in the department.  When openings arise in the Van, a detective simply submits his or her interest and resume. Interviews take place.  Seniority is a factor in selecting among applicants; a college degree is not a prerequisite.

Abrams had unsuccessfully sought to join the Van since 1998. During the period from 2004 to 2008, eight hires were made into the Van, all of them white. Although there were three African-American detectives who could have applied, only Abrams did apply. Although some of the detectives hired had college degrees and Abrams did not, Abrams had more training and seniority than each of the detectives selected above him.

Abrams had been given various reasons for his continued non-selection, including that he had a history of poor performance evaluations with regard to written reports.  Although his written reports from Academy days to time of application had been on and off in terms of quality, from 2001 to 2008 he was noted by his supervisor in performance reviews to have continually improved his written and oral reporting.

In fact, in 2007, Abram’s supervisor personally recommended Abrams to the selection committee; he rated Abrams “superior” in every category and noted in a March 2007 meeting about his recommendation that Abrams' reports were greatly improved and “fantastic.”  Yet Abrams was not hired.

So, if Abrams' reports were no longer a problem, and if seniority was a factor for hire but a college degree was simply a plus, what held Abrams back? 

Abrams' supervisor reported in a deposition that notwithstanding his recommendation of Abrams, the selecting official found a different applicant to be a “better fit” for the Van than Abrams.  This wasn’t the first time the word “fit” was used in Abram’s non-selection.  In an earlier attempt to join the Van, a member of the Van who was consulted during the selection process stated that he did not believe that Abrams fit in the group.  Abrams supervisor believed that the term “better fit” could relate to race.

After working through the chain to complain about the non-selection to the Van multiple times, Abrams filed suit. At summary judgment at trial, the trial court dismissed the discrimination claim.

On appeal to the 2nd Circuit, the court explained that to bring a disparate treatment discrimination claim, the following must be proved: (1) that she or he belonged to a protected class; (2) that he or she was qualified for the position sought; (3) that he or she suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.

The Appeals court held that Abrams successfully demonstrated elements (1), (2), and (4); the only question was whether he suffered an adverse employment action.  The trial court had ignored the question, and focused on the reasons DPS gave for the non-selection: (1) he—unlike five of the eight others selected—did not have a college education; (2) all members were selected for their specific skills or talent in investigation, report writing, or strong evaluations, and Abrams was not similarly situated to those selected; and (3) Abrams had ongoing problems with report writing.   

However the Appeals court overruled the trial court. It stated that 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 nondiscriminatory 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. The “fit in” statements gave rise to a genuine dispute as to whether the proffered reasons for Abrams's non-assignment to the Van were pretextual. 

“Fit” is a difficult question for HR and hiring managers. It is very subjective yet widely used. As such, HR needs to redefine the reasons for non-selection to ensure it is based on objective reasons. That is not easy to do when many times it does come down to whom the team will work better with, not who has the skills to do the job.  Therefore, HR needs to ensure that any selection is based on objective, not subjective reasons.

Source: Frederick M. Abrams v. Department of Public Safety, State of Connecticut, No. 13-111-cv (2nd Circuit Court of Appeals, August 26, 2014); Bradley Arant Boult Cummings LLP 10/28/14

 



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