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Former worker never should have been hired? You’re not off the hook for discrimination

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in Discrimination and Harassment,Hiring,Human Resources,Leaders & Managers,Management Training

Sometimes it takes strange circumstances to clarify the law.

Let’s say you learn that a former employee misled you during the hiring process, failing to reveal something so serious that—had you known—would have prevented you from making a job offer in the first place. Now your former employee is suing you for discrimination. Does the new information that came your way kill the lawsuit?

According to a recent New Jersey Supreme Court ruling, not necessarily so. The former employee still can sue for any discrimination that occurred while he was employed. He will, however, be limited in the types of damages he can collect.

Recent case: Back in the 1970s, when John Cicchetti was 21, he pleaded guilty to breaking and entering and stealing. About 15 years later, he had the record expunged and was told that he could think of his criminal record as something that “never happened.”

Cicchetti didn’t reveal his record or expungement when he applied for a job in law enforcement. A sheriff’s department hired him.

Then, while participating in a blood drive, he found out he had hepatitis C. From then on, his co-workers harassed him ceaselessly, going so far as to throw mouthwash on his locker and wear rubber gloves whenever they came near him. Finally, everyone stopped talking to Cicchetti altogether. Complaining to management didn’t change a thing.

Cicchetti quit and sued, alleging disability discrimination and harassment. That’s when his former employer found out about the expunged convictions. It argued to the New Jersey Supreme Court that someone who would never have been hired in the first place can’t sue for on-the-job discrimination and collect damages.

The New Jersey Supreme Court disagreed. It said Cicchetti was entitled to be protected from discrimination and to be free from harassment during the period of his employment. That’s true even if he would have been fired the moment his supervisors found out about the convictions.

The only limitation, the court concluded, was in what types of damages he could receive. It said “emotional distress, and potentially, punitive damages, cannot in fairness be limited or barred based on such after-acquired evidence.” (Cicchetti v. Norris County Sheriff’s Office, et al., No. A-102-2006, Supreme Court of New Jersey, 2008)

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