Three employment law lessons from Harvard University’s decision to revoke the admission of a Parkland shooting survivor

Throughout much of the day yesterday, Twitter trended with news that Harvard University had rescinded the college admission of one of Parkland shooting survivors.

For something the school just learned that he did two years ago.

Here’s more from Joe Sterling reporting here at CNN.com:

A Parkland shooting survivor and pro-Second Amendment activist said Harvard University rescinded his acceptance as a result of racist remarks he made before the 2018 massacre at Marjory Stoneman Douglas High School in Florida.

Kyle Kashuv disclosed the rescinding Monday in a Twitter thread, acknowledging that he and classmates, then 16, made “abhorrent racial slurs” in digital messages almost two years ago “in an effort to be as extreme and shocking as possible.”

Mr. Kashuv posted a long thread on Twitter in which he not only apologized but also described the procedural history that led Harvard to revoke his admission.

The point of today’s post is not to debate whether Harvard University did the right thing but rather to comment on this situation from an HR compliance perspective.

So what does this have to do with employment law and HR compliance?

A few things:

1. You can conditionally offer someone a job and rescind that job offer later based on the results of a background check or other information that comes to your attention.
2. You can terminate one of your current employees for something about which you learn in the employee’s past that would have led you not to hire him or her in the first place. In certain situations in litigation, this “after-acquired evidence” doctrine can allow an employer to limits its damages.
3. But, before going through with Numbers 1 or 2 above, the employer may have to check certain legal boxes before taking the adverse employment action.

For example, under the Fair Credit Reporting Act, if you use a third-party to conduct a background check, you must disclose to the person first that you intend to get run the background check and then get their written authorization allowing you to do that. Then, before taking any adverse employment action based on information in a consumer report, you must give that person:

• a notice that includes a copy of the consumer report you relied on to make your decision; and
• a copy of A Summary of Your Rights Under the Fair Credit Reporting Act, which the company that gave you the report should have given to you.

And while the law does not require this, for particularly sensitive matters, consider conducting your own thorough investigation, which would including interviewing the applicant/employee before taking any adverse employment action. Also, consider how much time has passed since the red flag, whether it relates to the job, and what the individual has done since then to rehabilitate.