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When is Withdrawing a Job Offer Considered

When is Withdrawing a Job Offer Considered "Retaliation"?

Employment discrimination laws broadly prohibit an employer from engaging in “retaliation.” That is to say, if you complain about illegal discrimination in the workplace, your employer cannot use that fact against you in making any decisions regarding your employment. Protection from retaliation also extends to prospective employers. An employer cannot refuse to hire you or withdraw a previously extended employment offer because you engage in “protected activity” under anti-discrimination law.

NY Court Rules VA Had Legitimate Reasons for Not Hiring Psychiatrist

If you suspect a job offer has been withdrawn due to your prior complaints about discrimination, it is important to document everything. A judge will not simply take your word for it that you lost out on a job opportunity. There must be credible evidence establishing causation, i.e. linking your legally protected activities to the decision not to hire you.

Here is a recent example where the plaintiff failed to do that. In this case, the plaintiff is a psychiatrist who worked at a Department of Veterans Affairs hospital in New Jersey. Several years after leaving that job, she applied for a similar position with a VA hospital in New York. Following an interview, the New York hospital extended an employment offer pending a review of her references and credentials.

The plaintiff's personnel record from New Jersey contained “mixed to negative” performance reviews. During her interview in New York, the plaintiff acknowledged that she had received “poor” job evaluations. After the New York hospital rescinded its conditional employment offer, the plaintiff sued, alleging it was retaliation for multiple employment discrimination claims she filed while employed by the New Jersey hospital.

Unfortunately, the plaintiff failed to provide the courts with much in the way of supporting evidence. The U.S. Second Circuit Court of Appeals, affirming a lower court's earlier ruling, dismissed the plaintiff's retaliation complaint for failure to establish causation. The main problem, the Second Circuit noted, was that there was no evidence that the hospital officials in New York were even aware of the prior discrimination claims that the plaintiff made in New Jersey. There was no mention of such activity in her official personnel record. While the plaintiff “speculated” a human resources officer in New Jersey told the New York hospital about her prior complaints, the appeals court said there was “no evidence” to back this up.

More to the point, the employer offered a “legitimate” and non-discriminatory reason for rescinding the plaintiff's employment offer, namely her poor performance evaluations. The hiring official at the New York hospital also said the plaintiff's personnel record said that she did not “possess the interpersonal skills necessary to establish and maintain effective work relationships,” which the official said was an “essential skill” for any new hire.

Have You Been the Victim of Retaliation?

Not every adverse employment action is discrimination. I you have reason to suspect that a prior discrimination complaint played a part in your inability to find new employment, you should speak with someone who understands the law in this area and can advise you appropriately. If you need to talk to a qualified New York employment law attorney, call the Law Offices of Mahir S. Nisar at (800) 496-3076 to schedule a consultation.

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