Legal Memorandum: Non-contingent Employment Offer in MN

Issue: When a non-contingent employment offer is rescinded, how may a plaintiff prove the post-offer conduct of the employer was merely a pretext for illegal discrimination?

Area of Law: Employee Law
Keywords: Non-contingent employment offer; Pretext for illegal discrimination; Conduct of employer
Jurisdiction: Federal, Minnesota
Cited Cases: 271 F.3d 718; 172 P.3d 688
Cited Statutes: None
Date: 07/01/2008

A plaintiff in a case like this may show that a supposed non-discriminatory reason is pretextual by (1) demonstrating that the proffered reason has no basis in fact, (2) demonstrating that the employer’s action was contrary to a policy or practice, (3) showing that it is unlikely the employer would have acted on the proffered reason, and (4) providing evidence of a discriminatory attitude in the workplace.  Diesing v. Best Buy, No. CIV 05-2540 (D. Minn. Sept. 10, 2007) (citing Erickson v. Farmland Indus., Inc., 271 F.3d 718 (8th Cir. 2001)). 

The fact that the offer was non-contingent is also potentially helpful.  Although no Eighth Circuit authority was located, recent cases from other jurisdictions suggest that, when an offer is non-contingent, a post-offer rescission, made after the employer learns that the prospective employee is in a protected class, may actually be direct evidence of discrimination.  In Hegwine v. Longview Fibre Co., 172 P.3d 688 (Wash. 2007), for instance, a job applicant brought a failure-to-hire claim against an employer, alleging that the employer refused to hire her because of her pregnancy.  The employer in that case had made a non-contingent job offer before learning, via a post-offer pre-employment physical, of the employee’s pregnancy.  Once it did learn about the pregnancy, the employer imposed ever-increasing lifting requirements for the position; each time the employee met the requirement, the employer raised it.  The court found it clear that the post-offer conduct of the employer was merely a […]

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