It’s time to reexamine the conventional wisdom that “not a good fit” should never be used to justify termination of employment, but only if that negative conclusion about the employee is sufficiently corroborated and is not a subterfuge for an employer’s unlawful motivation. A federal court of appeals just ruled that telling an employee that her contract was not being renewed because she was “not a good fit” for the organization was not necessarily a coverup for discrimination or retaliation. The court reasoned:
Describing an employee as not a “good fit” is an assessment that employers make all the time. Maybe someone’s skills do not match up with the institution’s mission. Maybe someone’s work ethic falls short of expectations. Maybe someone is just not a good team player. Though there may be circumstances where evidence reveals that “good fit” is a subterfuge for discrimination or retaliation, it is also a perfectly innocuous comment that an organization’s collaborative goals would not be furthered, and in fact might be retarded, by a particular employee. Institutional success is often a collective enterprise toward which an employer has entirely reasonable expectations that each employee should contribute.
While the court rejected the argument that “not a good fit” reasoning is itself “compelling evidence of retaliatory animus,” it only upheld dismissal of discrimination and retaliation claims because there was clear factual support for that conclusion. The outcome would have been very different without sufficient documentation of the incidents upon which the employer based its thinking.
The phrase “not a good fit” remains problematic because it is ambiguous and conclusory and could just as easily apply to unlawful prejudices as to legitimate reasons. It is not specific enough to point to a clear and legally acceptable reason. More focused explanations, with supporting documentation, should be used to justify any employment termination.
Practical Takeaways
Employers should:
- Require review and approval from human resources or administration prior to terminating an employee. A second pair of eyes can only help.
- Ensure that there is clear documentation supporting specific reasons for termination.
- Communicate one or more good reasons to the employee during the termination meeting or conversation and avoid other vague and conclusory statements like “It’s just not working out.”
- Document the termination reason(s) in a letter to the employee.
If you have any questions, please contact:
- Mark Sabey at (303) 801-3538 or marksabey@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
