After Acquired Evidence

Employment cases usually involve some type of “bad behavior” by the employer. But what happens when the employee has done something on the job – unknown to her employer at the time – that would have justified her termination? Some employers argue that an employee’s own misconduct (such as lying on a resume or unauthorized use of the employer’s property) was so severe that they would have discharged the employee because of that misconduct had the employer known of it. According to the employer, this “after-acquired” evidence about the employee should completely bar her discrimination claim.

The California Supreme Court recently clarified the law in this area. It held that after-acquired evidence is not a complete bar to discrimination cases. That’s because California’s strong public policy in favor of rooting out discrimination outweighs permitting employers to engage in discrimination – even if employee herself engaged in misconduct. The employee’s conduct, however, may still dramatically reduce the amount of money she can recover against the employer.