The Law of After-Acquired Evidence in Employment Discrimination Cases: Clarification of the Employer's Burden, Remedial Guidance, and the Enigma of Post-Termination Misconduct

Abstract

The article surveys the legal environment following the Supreme Court's ruling in /McKennon v. Nashville Banner Publishing Company/ that after-acquired evidence of employee wrongdoing is not an automatic bar to employer liability for employment discrimination. Three specific developments are detailed including employers' burden of proof for limiting damages; the EEOCs Enforcement Guidance especially as it pertains to remedies; and a discussion subsequent trial court decisions construing the Supreme Court's ruling. The author notes how this practice area continues to evolve and employers are still left in an uncertain position with regard to these cases.