Statements About 'Fitting In' Raised an Inference of Discrimination

Frederick Abrams was a detective with the Connecticut Department of Public Safety who'd tried unsuccessfully since 1998 to join the Department's "Major Crimes Van." The Van unit is an elite squad of detectives that solve major cases; membership in the Van is considered prestigious.

After years of trying -- but failing -- to get into the Van, Abrams sued the Department, claiming that he was denied a job in the Van unit because of his race. Abrams is black.

Relevant here, the District Court for the District of Connecticut granted summary judgment for the Department on the employment discrimination claims. The Second Circuit, however, ruled earlier this month that Abrams' case could move forward.

Background

Whenever Abrams applied for Van duty, he was denied the opportunity. But why? Could it be because he didn't have a college degree? Well, not really: Three of the eight detectives selected for the Van between 2004 and 2009 didn't have college degrees. Was it because of his performance? Maybe: At the academy, he didn't do so well in some areas, but over time, he "made a concerted effort and overcame these problems," according to an evaluation. And it couldn't be seniority: He was more senior than everyone chosen during that time period.

But on more than one occasion, members of the Van and the Van supervisor said that Abrams "did not fit in" or that another applicant would be "a better fit."

Raising an Inference

As it turns out, these comments were the death knell of the Department's case. One of the problems with Abrams' case is that he couldn't really point to evidence of discrimination. But there were those statements; as it turns out, the statements were the only thing the court found supporting an inference of discrimination. While the court wasn't deciding the merits of the "fit in" statements, it was deciding whether they were enough to deny summary judgment to the Department. All else equal -- a minority applicant has roughly the same qualifications and even more, a greater level of seniority than people promoted over him -- when people start talking about whether someone will fit in, "[i]t is enough of an ambiguity to create a reasonable question of fact."

Employment discrimination claims are hard to prove when there isn't overt evidence, like racial epithets flying around. In this opinion, the Second Circuit decided to err on the side of finding racial discrimination, leaving it up to a jury to decide what weight to give the statements. Businesses need to be very careful what they say about their employees and heavily document when an employee is turned down for a promotion or otherwise suffers any action that could be perceived as adverse.

Related Resources:

• Facts About Race/Color Discrimination (U.S. Equal Opportunity Employment Commission)
• Employee's Suit Accuses Tiffany of Racial Bias (The New York Times)
• How to Handle an EEOC Discrimination Charge (FindLaw's In House)
• Eleventh Cir. OKs Tyson Foods Racial Discrimination Lawsuit (FindLaw's U.S. Eleventh Circuit Blog)