Employer Who Un-Rescinds Job Offer Not Liable for Discrimination

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In May 2023, the New Jersey Appellate Division affirmed the trial court’s grant of summary judgment in favor of the defendant employer in Schoenberg v. The Devereux Foundation, 2023 WL 3486069 (App. Div. May 17, 2023). The salient facts are as follows: While eight months pregnant, Plaintiff attended a job fair where she applied for a position as a support professional for disabled persons.  She disclosed her pregnancy and anticipated maternity leave to Defendant when applying for the position.  Defendant advised Plaintiff they could accommodate her maternity leave and offered her a position.  However, shortly thereafter, the job offer was rescinded.  Plaintiff believed the job offer was rescinded because of her pregnancy and maternity leave.  Defendant then clarified that they would keep the job position open for Plaintiff until she was able to return to work from her maternity leave and asked her for an anticipated return date.  Plaintiff did not respond.  Instead, she filed a lawsuit claiming Defendant had discriminated against her due to her pregnancy.

The trial court granted the employer summary judgment, reasoning in part, “a rescission of an adverse employment action that makes a plaintiff whole cannot be grounds for an employment discrimination claim.”  The plaintiff employee appealed and the Appellate Division affirmed, finding even if the employer’s revocation of the job offer was discriminatory, the employer “cured the perceived revocation with multiple assurances and confirmations” that she had the job.  The court also noted that the employer had a legitimate non-discriminatory reason for rescinding the offer in the first place – the business was in the midst of an acquisition that was not yet complete, making work hours and location in flux at the time.  For these reasons, the court concluded that Plaintiff had failed to make a prima facie showing of discrimination as the revocation meant the employee did not suffer an adverse employment action.

Employers are encouraged to consult an attorney if an error is made in revoking a job offer to determine whether the error can be cured, and possible litigation avoided.


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