Jury can infer racial discrimination where plaintiff was not a "good fit" for postiion

I would say that proving racial discrimination in employment is one of the hardest things to accomplish in law. You have to show that a decisionmaker took race into account in firing or refusing to hire someone. That would brand the decisionmaker with a scarlet letter. Judges and juries are therefore skeptical of these claims. But you can still win, even if the evidence is subtle.

The case is Abrans v. Department of Public Safety, decided on July 14. Abrams worked in law enforcement. He was denied a transfer to the Major Crimes Van. His racial discrimination claim arising from the Van denial was dismissed on summary judgment. The Court of Appeals (Walker, Pooler and Wesley) reinstates it.

From 2004 through 2009, all eight detectives who were chosen to work on the Van were white. The Court of Appeals notes that "Abrams had more training and seniority than each of the detectives selected above him." While Abrams was recommended for the Van position in 2007, a superior officer denied him that promotion because another applicant was a "better fit." for the position. This was not the first time that "better fit" factored into plaintiff's promotion denial. At some point between 2000 and 2004, someone said that Abrams "did not fit in" for the Van position.

The primary issue on appeal is whether Abrams was denied the Van assignment for discriminatory reasons. The Court of Appeals says this is a close case, but that the jury can find in plaintiff's favor. The "fit in" comment can have racial connotations. The Fifth Circuit in 2004 said that a "fit in" comment 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." So, while some cases hold the plaintiff to a higher standard in promotion denial cases when management says that someone else was simply better qualified for the position (see, Byrnie v. Town of Cromwell, 243 F.3d 93 (2d Cir. 2001)), this case is different because the "fit in" comments suggest that something else -- race -- as opposed to mere qualification was going on here.

This is the second recent decision by the Court of Appeals holding that the jury may interpret subtle racial comments against the employer. On July 25, the Second Circuit held that a plaintiff who was fired could prevail under Title VII because, referring to the plaintiff's relationship with his black subordinates, his supervisor said "they don't know how to police each other." The supervisor also said "[the regional office] could lighten up a bit."