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'Stop, Drop and Roll'
Since the Supreme Court's decision in McKennon v. Nashville Banner Publ. Co. 513 U.S. 352 (1995), authorizing employers to contest back pay and front pay/reinstatement remedies if they acquire evidence during discovery that would have led to the plaintiff's termination irrespective of the disputed reason, employers have expanded the reach of their discovery efforts. The purpose: Find anything in the employee's background that the employer can argue would have led to the employee's termination anyway, thereby precluding the potentially costly remedies of back pay and front pay/reinstatement per the McKennon decision. This article posits some possible countermeasures for plaintiffs to employ in combating the “after-acquired evidence” defense.
The McKennon Holding
Under the McKennon “after-acquired evidence” doctrine, evidence of an employee's wrongdoing acquired after he or she is terminated can operate to reduce an employee's recoverable damages if he or she establishes that “the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of discharge.” McKennon, 513 U.S. at 362-63.
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