Bias Claim Requires Knowledge by Decision-Maker

In a decision that could make it harder for plaintiffs to win employment discrimination cases, an 11th U.S. Circuit Court of Appeals' panel ruled that job candidates claiming discrimination must prove that the decision-maker in the hiring process knew of their minority status. Lawyer Steven Lubetsky lost his appeal because he could not prove that the manager who rescinded his job offer was aware that he is Jewish.

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In a decision that could make it harder for plaintiffs to win employment discrimination cases, a federal appeals court in Miami has ruled that job candidates who claim they have been discriminated against must prove that the “decision-maker” in the hiring process knew of their minority status. The ruling came in the case of a Boca Raton, Fla., lawyer who alleged that a job offer was rescinded after the company, Applied Card Systems Inc., learned he is Jewish. The lawyer, Steven Lubetsky, lost his appeal before a three-judge panel of the 11th U.S. Circuit Court of Appeals this week because he could not prove that the manager who rescinded his job offer was aware that he is Jewish. Lubetsky said in a lawsuit he had informed an interviewer at the company that he is Jewish. Initially, he was offered a job. Hours later, the offer was rescinded. But the actual decision to reject him was made by a department manager who had no idea he is Jewish, the appeals court found. And without that knowledge, the court held the company could not be held liable for discriminating against Lubetsky. “When we evaluate a charge of disparate treatment employment discrimination, we must focus on the actual knowledge and action of the decision-maker,” the three-judge panel wrote. It is unlawful under Title VII of the Civil Rights Act of 1964 for an employer to refuse to hire a person because of an individual’s race, color, religion, sex or national origin. In June 1998, Lubetsky, a solo practitioner, sought a career change from practicing law and applied to be a correspondent analyst with the Boca Raton office of Connecticut-based Applied Card Systems. The position primarily involved assessing applications for credit cards. After an interview with a job recruiter named Debbie Gracia at the company, he was offered the position. Lubetsky told Gracia that he is Jewish and would need time off during religious holidays. Gracia said that there would be no problem. Later that day, Gracia spoke with a department manager named John Bardakjy who said he met Lubetsky at a job fair in August 1997 and found him rude and aggressive, according to the court’s findings. Bardakjy told Gracia to withdraw the offer, which she did later that day. Gracia, according to the court’s ruling, lied to Lubetsky and said the position had been filled. Weeks later, a classified advertisement appeared in the South Florida Sun-Sentinel advertising the position that had been denied Lubetsky. In March 2000, Lubetsky sued Applied Card Systems in U.S. District Court for religious discrimination under Title VII. Last year, U.S. District Judge Patricia A. Seitz of the Southern District of Florida granted summary judgment in favor of the company. Sean N.R. Wells, a partner at Feldman Gale & Weber in Miami who represented Applied Card Systems, said the decision clears up any confusion in this area of employment law. “This is not a major shift in the law but a clarification,” said Wells. Fort Lauderdale, Fla., attorney G. Ware Cornell Jr., who represents Lubetsky, vowed to ask the 11th Circuit for a rehearing. The case “highlights the danger that exists where an employer can avoid liability by simply filing an affidavit denying knowledge of the employee’s protected characteristic,” Cornell wrote in a brief to the appeals court. Throughout the case, Lubetsky claimed that not only had Gracia lied to him, but that Bardakjy could not have met him at a job fair in 1997 because he was in Pittsburgh at the time. “We caught people from Applied Card Systems telling one lie after another,” Lubetsky said in an interview. Nevertheless, the court ruled that it does not matter if Gracia lied or if Bardakjy was mistaken, but only if Bardakjy knew Lubetsky was Jewish, which Lubetsky could not prove. The court said it was irrelevant that Gracia knew he is Jewish, because she did not make the hiring decision. Lubetsky, a graduate of Duquesne University Law School in Pittsburgh, has been licensed to practice law in Florida since 1985. He is also licensed to practice in Pennsylvania and New Jersey. In an interview, Lubetsky said he has a general practice that includes family law, real estates, trusts and estates. He said he is practicing law part time while job-hunting.

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