Q: I extended an offer to a protected class – she is pregnant – and I am considering rescinding the offer, not for that reason, just that I might have a more qualified candidate.  What do I need to consider here?

A: Rescinding a job offer can be a little risky, even with a non-pregnant employee, so you’re right to be more cautious with this candidate. 

I think the main thing to consider is that this action could cause the individual to conclude that it was the pregnancy that prevented you from hiring her and result in a claim of discrimination being filed against you. If that’s the case, your defense will lie in the fact that you had another candidate more qualified. Therefore, you should keep the applications and other recruiting information that helps you prove this. I recommend this be kept in a safe place for at least 3 years from the date the decision is made. 

In addition to a potential claim of discrimination for pregnancy, there can also be legal consequences brought against you for breach of contract, depending on the circumstances, and the individual can seek damages if they can prove they suffered financial losses or other harm as a result of the rescission. 

In telling this individual the offer is being rescinded, I would let her know that another candidate came into the picture later than expected, and they are more qualified for this position; thus, the offer to her is being rescinded.