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Bias claim goes nowhere unless minority status was clear

by on
in Hiring,Human Resources

When Steven Lubetsky applied for an analyst job, he aced the interview and several competence tests. The company offered him the job pending a credit check. Lubetsky explained that he was Jewish and asked about the firm's leave policy for religious holidays.

The recruiter e-mailed the department manager saying she'd made the job offer. But the manager recalled meeting Lubetsky at a recent job fair and his recollections weren't favorable. He found Lubetsky rude and aggressive. The manager told the recruiter to rescind the job offer, which she did. Instead of telling the applicant the real reason, she fibbed and said the job had already been promised to someone else.

Two weeks later, Lubetsky saw a newspaper ad for the same job. He sued, alleging the job was rescinded because of his religion.

A lower court sided with the company, and an appeals court agreed. It didn't matter whether the recruiter lied or even if the manager's recollections of the applicant were wrong, the court said. It also was irrelevant that the recruiter knew the applicant was Jewish because she didn't make the ultimate hiring decision, the manager did. All that mattered was whether the manager knew the applicant's religion, which couldn't be proved. (Lubetsky v. Applied Card Systems Inc., No. 01-17203, 11th Cir., 2002)

Advice: Job candidates claiming bias must prove that the real decision maker in the hiring process knew of their minority status. Luckily, this company didn't discuss the applicant's religion. But the company could have avoided the suit in the first place by following these two rules:

1. Don't offer a job without first getting the approval of all hiring managers involved. Lubetsky wouldn't have sued if he had been turned down the first time.

2. Never sugarcoat your reasons for rejecting a candidate , it'll often come back to haunt you and isn't fair to the applicant. Telling Lubetsky, "Sorry, the job is rescinded because the boss thinks you're a poor fit for this job and company," would be awkward, but it may keep the applicant from conjuring up discrimination theories.

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