Employers in New York and around the country sometimes defend themselves against discrimination complaints by arguing that the worker involved deserved to be fired. This tactic can benefit employers even in cases where discrimination is clear because it may limit recoverable damages, and employers sometimes go to great lengths to gather evidence of misconduct when terminated workers have filed, or are thought to be about to file, discrimination claims.
The information collected during these efforts is known as after-acquired evidence, and the U.S. Supreme Court ruled in 1995 that it should be taken into consideration when calculating damages in discrimination cases. However, the nation's highest court said that evidence of misconduct alone was not sufficient grounds to prevent such a case from moving forward. The case involved a woman who admitted during a deposition that she had copied a number of confidential documents without permission.