Question: We just found out our new hire was fired from his last job for bad attendance, after which he sued the company for disability discrimination. We’re worried he’s not a fit. Can we revoke the conditional job offer?
Answer: You have the right to revoke an offer when you have a legitimate, non-discriminatory reason, such as not hiring someone who was terminated for attendance violations. However, in this case it’s not that simple. Two other key issues about his prior job surfaced: he alleged a disability and he filed a claim against his past employer. If it seems in any way that you are withdrawing your offer because of his protected status (disability) or his protected activity (filing a claim), then your decision would be viewed as discrimination and retaliation. This is how a federal court in Washington state is currently viewing similar facts. In that case, an applicant at Boeing shared that her poor performance with a previous employer was related to her anxiety disability, and after she requested an accommodation, she was fired. Boeing withdrew its offer, claiming she was unqualified under its hiring matrix. However, the federal court found enough evidence to suggest that Boeing was simply trying to unhitch a new employee who had a disability and was willing to file a discrimination claim. The case is continuing to trial (Lechner v. Boeing Co., WD Wash, Jan. 2017).
Although it’s tempting to cut bait early when you get bad news, you have to be fully knowledgeable and honest about why you don’t want to keep your new hire. If you have multiple reasons for not wanting to hire and a few are discriminatory (e.g., they filed several worker’s comp claims, they sued their prior employer for harassment, etc.), then you’ll have an uphill battle trying to prove that you didn’t hire for non-discriminatory reasons. To avoid the appearance of discrimination or retaliation, look for initial clues in an application and ask questions designed to illicit safe information about skills, behavior, and past performance. Also, make your offer after you check references, and if you are withdrawing a conditional offer, make sure you document legitimate, business-related reasons in case your decision is later challenged. For help gathering safe information while hiring, see Vigilant’s Legal Guides, “Look for Red Flags in the Hiring Process” and “Hiring Do’s and Don’ts”.
This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult Vigilant or legal counsel.