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We interviewed a candidate for a position and all looked…

We interviewed a candidate for...
We interviewed a candidate for a position and all looked good. We then asked a colleague from another company who had previously hired the candidate and asked what they thought of the candidate. The colleague advised that she is "nuts" and we shouldn't hire her.In sending an e-mail to our manager, the owner inadvertently copied the candidate on the e-mail. We then received a e-mail from the candidate which was very respectful and she explained that she had worked well with the colleague who called her nuts and she gave us several documents
in her Resume packet, showing examples from said colleague and high-profile clients stating what an exceptional job she was doing. and offered to provide us with that would recant the Colleague's statement. Our concern is if we do not offer her the position can you offer any guidance on whether we could be sued for discrimination based on her knowledge of what the colleague advised?
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Answered in 5 minutes by:
1/25/2017
John
John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5,984
Experience: Exclusively practice labor and employment law.
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Hi, thanks for submitting your question today. My name is John. I have over 13 years of legal and consulting experience in this area. I’m happy to assist you with your question today. Please note that the website may ask you if you desire premium services, such as a phone call. I do not control these prompts, and you are not under any obligation to order premium services to get a full answer from me. If you do desire premium services, however, feel free to select that option. I will have an answer for you shortly, unless I require additional information. Please be patient while I may have to research some matters before providing a response. In the meantime you should save the url link or bookmark this webpage in case you become disconnected and need to return to this page at a later time.

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Customer reply replied 1 year ago
Ok thank you. I look forward to receiving your answer.

New Jersey is one of the few states that doesn't have any laws specifically regarding references. Most states give employers legal immunity from defamation lawsuits – which means that the employer is not subject to liability and cannot be sued -- for information they provide to prospective employers, as long as the employer speaks honestly and doesn't go beyond the specific types of information laid out in the statute.

There's potential liability on not only your part but the part of the referring employer. Namely, they made a statement "nuts" that can easily be inferred to have a mental disability. What he probably meant in fact is that she is difficult to work for, but it can also be interpreted different ways. And if she does in fact have a mental condition, she has shown that she can do the job, so she fits the definition of disability under the ADA. The referring employer also have potential claims of defamation, interference with contract, and intentional infliction of emotional distress. If you don't hire her you probably will here from an attorney claiming discrimination on her part; sorry to say.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers (even though the website already charged you, it does not credit me with the answer unless and until you indicate you are satisfied with the answer). Thank you, ***** ***** wish you all the best with this matter.

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Customer reply replied 1 year ago
Let's say that we offer her the position and in her offer letter advise that she is being hired and the first 90 days is an "introductory or probationary" period as we do with all new hires and then in that 90 days realize she is not working out and fire her would we still be liable?

Probably, but you have to have a legitimate non-discriminatory reason for the termination. The 90 day period isn't a per se protection from her claiming discrimination - though your hire of her does largely dispel that you would have a discriminatory animus toward her

John
John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5,984
Experience: Exclusively practice labor and employment law.
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John and 87 other Employment Law Specialists are ready to help you
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Customer reply replied 1 year ago
Thank you for your expertise and guidance. Much appreciated.

Welcome.

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