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Is Statement By Employer That "You Don't Fit In" a Sign of Racial Bias?

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 a prerequisite.

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.

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