Employment Discrimination and the “After-Acquired Evidence” Defense

What is the after-acquired evidence defense?

Employees in New York and across the country are protected from discrimination or unfavorable treatment based on certain attributes, such as their race, religion, disability, gender, and sexual orientation.  Employees who believe they have been discriminated against may be able to file an employment discrimination case.  Anyone considering filing such an action should be aware of the after-acquired evidence defense, which their employer may assert.

After-Acquired Evidence Defined

The term “after-acquired evidence” refers to evidence of alleged misconduct discovered by your employer after your termination.  The misconduct must be such that had your employer known of the misconduct, it would have led to your firing.  The U.S. Supreme Court discussed the issue of after-acquired evidence in the 1995 case of McKennon v. Nashville Banner Publishing Co.  In this case, the court held that after-acquired evidence can limit your potential money damages in an employment discrimination case.  For instance, say you were fired because of your gender, but your employer later found out you had stolen from the company.  Even if you prove your employer discriminated against you due to your gender, your employer can bring in evidence of theft to try to limit the damages you receive.  

Using after-acquired evidence, your employer can minimize your claim for back pay.  The court could hold that you will only be paid for the time period between when the company fired you and when your employer discovered evidence of misconduct.  In contrast, without the after-acquired evidence defense, you may be able to receive back pay from the date of your firing until you get a new job.  

Employees who bring an employment discrimination claim should be aware that due to the existence of the after-acquired evidence defense, your employer will likely scour your work record to search for misconduct or mistakes.  Anticipate that your employer may speak to co-workers about any questionable conduct and will go through your personnel records closely.  Alleged misconduct must be sufficiently serious that your employer would credibly have fired you based on this conduct alone.  In some cases, the after-acquired evidence could even serve to help your employer win the discrimination case.  Contact an employment discrimination attorney as soon as possible for assistance with your potential case.