After-Acquired Evidence
After-acquired evidence is information an employer learns about an employee's misconduct or resume misrepresentation after firing the employee for some other reason. It does not erase the original wrongful-termination claim, but it can cap the damages the employee can recover.
KEY TAKEAWAYS
- After-acquired evidence does not bar liability under McKennon v. Nashville Banner (1995) 513 U.S. 352; the wrongful firing claim still proceeds.
- What the doctrine limits is damages: back pay generally stops on the date the employer discovers the misconduct, and front pay and reinstatement usually fall away.
- The employer has the burden to prove (1) the misconduct was severe enough to warrant termination and (2) it actually would have fired the employee on discovering it.
- FEHA filing window stays at three years to the CRD under Gov. Code §12960; 300 days to the EEOC for ADA, ADEA, and Title VII claims.
The controlling Supreme Court case is McKennon v. Nashville Banner Publ'g Co. (1995) 513 U.S. 352, which held that after-acquired evidence does not bar liability for the underlying discrimination claim. The employer must still answer for the unlawful firing. What the doctrine does limit is back pay and reinstatement: back pay generally runs only from the date of firing to the date the employer discovers the misconduct. Front pay and reinstatement are usually unavailable once the employer can show it would have lawfully terminated based on the after-acquired information.
The employer carries the burden. It has to prove (1) the wrongdoing was severe enough that termination was the actual response it would have taken, and (2) it would have actually fired the employee on discovering the misconduct, not just that it could have.
Example: A claims adjuster files a CRD charge alleging her supervisor fired her because of pregnancy. During discovery, the employer subpoenas her LinkedIn history and finds she overstated a prior salary by $15,000 on her job application. Under McKennon, the pregnancy-discrimination claim under Gov. Code §12940(a) and §12945 still proceeds. But if the employer documents a consistent practice of firing employees for application misrepresentation, the back-pay window closes on the date the resume issue was discovered, and front pay is off the table.
Filing windows for the underlying claim are not affected: three years to the CRD under Gov. Code §12960; 300 days to the EEOC. A wrongful termination lawyer can sort out damages exposure.
From our practice: Defense counsel routinely use after-acquired evidence as a damages tool late in discovery, not as a liability defense. The way employees protect themselves is by being scrupulously accurate on resumes and applications. A $15,000 salary inflation from a job a decade ago can knock six figures off a settlement value if the employer documents a consistent application-fraud termination policy.
Attorney Advertising. Page reviewed by David M. Safvati, CA Bar #326605. This advertisement is the responsibility of Westview Law PC.
