It can be hard to articulate why a candidate isn’t right for a particular job. Or why an employee is not the best pick for a certain assignment or promotion. But it is really important for employers to identify legitimate, business related reasons for an individual’s non-selection. One phrase that has historically been problematic is the “she just doesn’t fit in” approach. Saying someone does not fit in can sometimes be seen as proxy for some kind of discrimination. That’s precisely the pickle the Connecticut Department of Public Safety finds itself in now.
In Abrams v. Dept. of Public Safety, the Second Circuit reversed a grant of summary judgment for the employer. At issue was an African American employee’s non-selection for a prestigious assignment. Two of the decision makers said words to the effect that Mr. Abrams just didn’t fit in with the group. While the lower court found these insufficient to take the case to a jury, the court of appeals disagreed. Stating it was a “close case,” the court opined that a reasonable jury could construe the comments as implicitly referring to Mr. Abrams’s race. Now, a jury will decide.
This decision is a scary one for employers. The comments about Mr. Abrams not fitting in could very well have nothing at all to do with his race. Yet the employer is now stuck with the expensive and stressful prospect of proving this to a jury.
What’s the takeaway? TRAIN your supervisors on how to make employment-related decisions and, just as importantly, what not to say in the process. This would typically fall under your performance management training (which of course you roll out on a regular basis, right?).