Retaliatory Litigation Tactics: The Chilling Effects of After-Acquired Evidence

Abstract

Even a victim of the most egregious discrimination may recover little monetary relief if the defendant discovers, after firing the employee, that she committed some firable offense. Yet the case in which the Supreme Court so held, McKennon v. Nashville Banner Publishing, was widely viewed as a victory rather than a defeat for plaintiffs, because the Court held that such after-acquired evidence of misconduct merely limited remedies but did not completely eliminate plaintiffs' rights to sue for discrimination. Given that McKennon could be portrayed either as a victory for plaintiffs or an unjust denial of relief for victims of discrimination, it is surprising that there has been little academic inquiry into the actual effects of McKennon on discrimination claims. This Article documents how the after-acquired evidence doctrine of McKennon plays a troubling, role in civil rights litigation: it shifts the focus of the discussion off the employer's illegal acts and onto the worthiness of the plaintiff; and it chills full enforcement of discrimination laws. Using both an empirical analysis of judicial decisions and a series of interviews with attorneys, this Article uncovers new evidence that employers most often seek to limit a plaintiff's remedies based on evidence of relatively minor transgressions, most commonly resume fraud, that would not likely have been discovered had the plaintiff not sued to challenge employment discrimination. Further, both the data from judicial opinions and the evidence from practicing attorneys suggest that the potential for disclosure of negative personal and professional information dissuades plaintiffs from pursuing even meritorious claims of discrimination. From its inception, the after-acquired evidence defense has prompted concern from a small number of critical voices that it carried potential as a tool for abuse of employees seeking to vindicate their rights. The evidence offered in this Article vindicates these concerns, and raises serious doubts about the continued existence of the doctrine. Acknowledging how unlikely the defense is to be abolished, this Article concludes that these concerns should alternatively prompt litigants and courts to recognize claims of illegal retaliation when employers misuse the after-acquired evidence doctrine by asserting the defense frivolously to deter plaintiffs from pursuing discrimination claims.