Employment Discrimination Claims Remain Valid Despite After-Acquired Evidence of Employee Wrongdoing

61 Pages Posted: 28 Oct 2009

See all articles by Christine Neylon O'Brien

Christine Neylon O'Brien

Boston College - Carroll School of Management

Date Written: October 26, 1995

Abstract

This article explores the legal practice area of employment discrimination and adverse decisions based on after-acquired evidence. A division among the circuits courts arose concerning the impact of after-acquired evidence of employee wrongdoing upon an employer's liability for employment discrimination. When pre-trial discovery unveiled a separate nondiscriminatory reason for termination, numerous circuits allowed such previously unknown information to constitute a legitimate basis for the employment decision, following the model of a mixed-motive discharge. A trend developed however, among other circuits that after-acquired evidence of employee misconduct should not prevent the establishment of employer liability, but that it should be considered at the remedies phase. The United States Supreme Court affirmed the latter approach in /McKennon v. Nashville Banner Publishing Company.

Suggested Citation

O'Brien, Christine Neylon, Employment Discrimination Claims Remain Valid Despite After-Acquired Evidence of Employee Wrongdoing (October 26, 1995). Pepperdine Law Review, Vol. 23, pp. 65-124, 1995 , Available at SSRN: https://ssrn.com/abstract=1494356

Christine Neylon O'Brien (Contact Author)

Boston College - Carroll School of Management ( email )

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