We all know that chemistry can be crucial to the success of any team. And sometimes job candidates glow on paper, but through the interview process the employer gets a good sense that the candidate just won’t “fit in” with the rest of the team. Is a vague sense of “bad fit” a sufficient basis for rejecting a candidate? Probably not.

This was the issue faced by the Second Circuit in Abrams v. Dept. of Public Safety. Abrams, a detective in the Major Crimes Unit, was repeatedly passed over for a promotion to “the Van” (the prestigious homicide unit, and a subset of Major Crimes). Abrams filed suit against his employer for race discrimination, citing his race as the reason for his non-selection to the Van. Abrams presented evidence that two officers tasked with selecting candidates for the Van made statements on more than one occasion that Abrams “did not fit in” with the other Van members and that other applicants were a “better fit” for the Van. The Second Circuit reversed the lower court’s grant of summary judgment and held that the “fit in” statements were so vague that there was a genuine issue as to whether the proffered reasons for Abram’s non-assignment to the Van were legitimate or pretextual. Ultimately, it will be left for a jury to decide whether or not the “fit in” statements implicitly referred to Abrams’ race.

It is common practice for an employer to use “not a good fit” when communicating a decision not to hire (or “no longer a good fit” when communicating a decision to fire). In light of the Second Circuit’s ruling, employers should be prepared to back that statement up through contemporaneously documented analysis of why the fit was not good. Even better, the employer should consider making the statement less vague – for example by stating “in light of your lack of a college degree you are not a good fit.” Although a vague “not a good fit” statement will not prove discrimination, without more from the employer it may be enough to create a factual issue and to foreclose an employer’s chance for summary judgment. It is vitally important that employers identify and contemporaneously document legitimate, business reasons for an applicant’s non-selection to avoid the expensive proposition of proving to a jury that an employer’s “fit in” statements were not pretextual.