What would you think if your employer passes you over for a promotion because
you don't "fit in" with the rest of the team? Would your
answer change if you were a member of a minority race? Perhaps the employer
is using code words to hide a racially discriminatory motive?
These types of questions were addressed in a United States Second Circuit
Court of Appeals
decision handed down this Monday. Frederick Abrams, a black male, joined the Connecticut
Department of Public Safety in 1986. After joining the department, Abrams
worked his way up to detective — a position that handles all major
crimes except homicides, according to the opinion. Abrams had been denied
a position in the Major Crimes Van several times since he first expressed
interest in 1998 for reasons ranging from a history of poor performance
evaluations with regard to written reports to a lack of knowledge of the
penal code. The Van is the unit that handles homicides and is considered
to be the place where the best detectives in the department work.
Abrams, however, showed consistent improvement in these areas and eventually
was being passed over despite having greater seniority and more training
than newer white Van members, the opinion said. Abrams did not have a
college degree, which several of the newer Van members, but it was not
When a position opened in 2007, Abrams' longtime supervisor recommended
him for the job, but a selection committee member chose a different candidate
whom he said was "a better fit" for the Van team. Abrams'
supervisor later testified that he thought the comment might have had
a racial implication, according to court documents. Instead, the DPS transferred
him to the casino unit — a less desirable assignment — after
he complained about discrimination, according to court documents.
Abrams sued, alleging race discrimination for his failure to be transferred
into the Major Crimes Unit. His suit was dismissed by the federal district
court, but was reinstated by the U.S. Court of Appeals.
According to the court, "The phrasing "better fit" or "fitting
in" just might have been about race; and … could be enough
to create a reasonable question of fact for a jury," the panel said.
"It is enough of an ambiguity to create a reasonable question of
fact." It went on to state that "Balancing all of these factors,
we see this as a very close case, and one that is simply too close to
call and should be a question for a jury," the Second Circuit said.
"The 'fit in' statements raise a genuine dispute as to whether
the proffered reasons for Abrams's non‐assignment to the [Major Crimes]
Van were pretextual."
The court also said that the DPS' non‐discriminatory reasons for not
selecting Abrams — particularly his poor writing reviews and lack
of a college education — were flimsy. It noted that the poor writing
reviews were largely from his time in police training many years earlier,
and that more than one‐third of persons selected for the Van also did
not have a college education.
The court reinstated the case and sent it back for a jury trial.
The takeway? Be conscious of code words used when being considered for
a promotion or a raise. If you are told that you don't "fit in",
the employer may be referring to your race, gender, or sexual orientation.
That is illegal.
If you feel you have been the victim of discrimination in your New York
workplace, contact the attorneys at Schwartz Perry & Heller LLP.