We hear it a lot. An employer did not hire an applicant – she “wasn’t a good fit.” Or let an employee go because he “wasn’t a good fit.”
Having worked in various organizations, we know it is sometimes true – some people are better fits in certain organizations than others. However, that explanation is not usually good enough to successfully defend an employer against a discrimination claim rooted in an employment decision based solely on “fit.” In other words, if an applicant or employee alleges that the employer actually made the decision because of the individual’s race, age, gender, or other status protected under various laws, “not a good fit” may not be a sufficient explanation for a judge, jury, or the U.S. Equal Employment Opportunity Commission. And in fact, employers, country clubs and other groups have used “fit” as an explanation when they consciously or subconsciously are less accepting of individuals in protected classes.
Thus, when I hear employers use words like “fit” or other words that are inherently somewhat subjective, I push the employer to explain: why is the individual not a good fit? Because while the conclusion may be valid, for the employer to protect itself it will be important to explain the specifics behind that conclusion. The more measurable an explanation the employer has, the better. The less it is just about fit, the better the employer’s likelihood to prevail in a discrimination dispute
Sometimes this is easy. The performance of a salesperson is typically easily measured by sales data. If an employee is moving product, any right thinking for-profit organization does not care about that employee’s demographics. It is not uncommon for a discrimination claimant in a sales setting to claim that territories were unfairly assigned on a discriminatory basis, and that is why the individual’s sales were lacking. But even that allegation, if untrue, can often be rebutted with data about the sales territories.
In the applicant setting, certain experience or educational requirements can be equally strong defenses. Of course, the employer needs to consistently apply these requirements, but if it does and there is some reasonable basis for the requirement, it will be difficult for a claimant to challenge that decision.
Decisions based on input from third parties also are typically received as more objective input about an employee than the employer’s subjective conclusions. While an employer needs to be cautious about simply buying into customer complaints or preferences that are themselves discriminatory, information from a customer or other business associate about an employee may come across to a judge or jury as more reliable. For example, if a key customer has provided well-reasoned concerns about your employee, those concerns can be a powerful defense to a discrimination claim.
The challenging situations often are those where an employee really doesn’t fit in an organization. The employee may be hard to get along with, less invested in the company’s mission, unwilling to step up and help out colleagues, and/or undermines management in subtle ways. We all know these things are real with some employees of all shapes and sizes. And you can’t put them on a spreadsheet, but you know it’s there.
To safely take action against an employee who is in a legally protected class for these kinds of reasons, the employer needs to work – perhaps with employment counsel – to identify clearly communicated, specific expectations and the employee’s failure to meet them. It is not easy, and some employees – again, regardless of demographics – are skilled in being negative presences in a way that is hard to “catch.”
Two practical considerations should be noted. First, a no-hire decision usually carries with it much less legal risk than a termination. It is “equally illegal” to make either decision on an unlawful basis, but as a practical matter there are many fewer “failure to hire” claims. Further, it is much harder for a claimant to prove discrimination where she was one of many unsuccessful applicants, as opposed to a termination situation, which is unquestionably about her. This underscores what is true, separate and apart from liability avoidance: investments in good hiring decisions are good investments. The more “fit” issues you can identify at that stage, the better.
Second, it is a fact that the risk of “fit” decisions with respect to young, white, healthy males are usually lower than those involving individuals in a protected class. Employers should not read that as either a license to make bad decisions involving individuals not in a protected class, or an inability to properly address legitimate issues with employees who are in a protected class.
Rather, as I wrote here, the best defense against discrimination liability is to make consistent decisions based on clearly communicated expectations about how each employee furthers the company’s mission. That is not only good liability avoidance, it also happens to be good business.
Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.