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When employers in Tennessee and around the country are accused of letting a worker go because of race, age, gender, religion or national origin, they sometimes argue that the employee concerned should have been fired for misconduct anyway. This is known as an after-acquired evidence defense, and it can save employers money even in situations where discrimination can be proved. Employers generally prepare to mount this kind of defense by interviewing the coworkers of employees who have filed discrimination complaints and studying their work habits, online activities and emails.

The U.S. Supreme Court heard an after-acquired evidence argument in 1995 in a case involving a woman who alleged that she was terminated in violation of the 1967 Age Discrimination in Employment Act. The woman admitted during a deposition that she had copied several confidential documents during the course of her employment, and her employer argued that this behavior warranted her dismissal and shielded it from liability even if it had originally fired her because of her age.

A district court judge agreed and granted the employer a summary judgment, and an appeals court subsequently affirmed this decision. However, the Supreme Court took a different position. The nation’s highest court ruled that after-acquired evidence could limit the amount of damages awarded in workplace discrimination cases but it could not prevent such claims from being pursued.

Attorneys with experience in workplace harassment and unfair dismissal cases may ask their clients about their work histories prior to filing these types of lawsuits, and they could be particularly interested in when employers may have learned, or likely will learn, about any violations of company policies or other misconduct. These complaints usually include claims for back pay, and the amount of back pay recoverable may be limited to the period between the wrongful dismissal and the employer’s discovery of inappropriate behavior or misconduct.