Under the doctrine of after-acquired evidence, an employer may avoid liability for a discriminatory employment decision by pointing to evidence of employee wrongdoing that it discovered after the time the employment decision was made. This evidence, which usually consists of r~sum6 fraud or on-the-job misconduct, provides a complete defense to a federal discrimination claim if an employer is able to show that it would never have hired the employee or that it would have fired the employee had it known of the information. Courts applying the after-acquired evidence doctrine reason that employees, responsible for misconduct on the job, suffer no compensable injury for the loss of employment to which they were not entitled. A minority of courts have rejected the after-acquired evidence rationale, holding that an employer is liable for a discriminatory employment decision regardless of any subsequently discovered evidence of employee fraud or misconduct.
In his Note, the author criticizes both approaches and proposes an alternate framework that is more consistent with the deterrent and remedial goals of the federal antidiscrimination laws. The author argues that compensatory damages should be awarded for the discrimination suffered by the employee because the employer's discovery of after-acquired evidence does not mitigate the emotional harm caused by its discriminatory act. However, the author also argues that an employee, terminated for wrongdoing, is not entitled to an award of back pay because that would confer a windfall upon an undeserving employee. Because the back pay remedy relates specifically to the loss of employment, a wrongdoing employee should not recover back pay if an employer is able to prove that the employee was not entitled to the job.
Richard G. Steele,
Rethinking the After-Acquired Evidence Defense in Title VII Disparate Treatment Cases,
46 Hastings L.J. 243
Available at: https://repository.uchastings.edu/hastings_law_journal/vol46/iss1/10