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.
When employers are able to gather evidence of actionable misconduct, back pay may only be awarded for the period between the unfair dismissal and the discovery of the offense. Employers may also use after-acquired evidence to corroborate arguments that workers were fired for nondiscriminatory reasons. Opponents of this strategy say that it allows employers to claim that they were motivated by knowledge they did not have.
Attorneys with experience in employee rights cases may urge workers who are thinking of filing discrimination or unfair dismissal complaints to take steps to limit the amount of after-acquired evidence that can be gathered against them. Attorneys could also suggest that workers in hostile environments who fear being fired for discriminatory reasons follow all company policies and procedures closely and delete any inappropriate emails and online statements. When after-acquired evidence is introduced by employers, attorneys may seek to find out how other workers were punished for the same kind of behavior.