Good news for employers that have had to revoke conditional employment offers: Employers that discover disqualifying information after an offer has been tendered but before the candidate starts work are free to revoke the offer. That won’t result in a big jury award.
Recent case: Philip was offered a job, but first he had to pass aof his criminal history and driving record. He told the employer about some previous run-ins with the law. But the background check also uncovered a driving record marred by a suspension. The company decided not to hire Philip after all.
He sued, claiming the real reason had to be his race, ethnicity or religion. He pointed out that he had already disclosed his criminal past.
The court said that didn’t matter. The official background check did—and it included more disqualifying information. Philip’s case was dismissed. (Johnson v. Public Service Enterprise Group, No. 12-4256, 3rd Cir., 2013)
Final note: Be careful about using criminal records as the only determining factor in denying employment. Pennsylvania has specific rules on using arrests and minor offenses against applicants. Plus, the EEOC has recently asserted that blanket bans on hiring those with criminal records may violate Title VII.
Any information used to exclude an applicant should be based on business necessity and be clearly job-related. In this case, the job involved driving and the applicant had a spotty driving history that included a suspension. That’s job-related.
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