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High Court Rejects Defense Used in Job-Discrimination Cases

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The U.S. Supreme Court ruled last week that employers facing discrimination lawsuits cannot dodge liability by going back to find misconduct in workers' personnel files.

The Court's unanimous decision in McKennon v. Nashville Banner Publishing Company (Case No. 93-1543) eliminates a defense that a growing number of employers had used successfully in recent years to win the dismissal of federal lawsuits alleging discrimination based on age, race, and other factors.

Some lower federal courts had ruled that so-called "after acquired" evidence of misconduct, such as an employer discovering a falsified r‚sum‚, could be a complete defense against job-discrimination claims.

Civil-rights lawyers have criticized the tactic, arguing that it encouraged employers to "dig for dirt" in the employment records of workers claiming job bias.

Writing for the High Court, Associate Justice Anthony M. Kennedy said the after-acquired-evidence defense undermines the basic purpose of federal laws that prohibit workplace discrimination, which is to deter all incidents or patterns of illegal bias.

"The disclosure through litigation of incidents or practices which violate national policies respecting nondiscrimination in the workforce is itself important," he wrote.

Justice Kennedy added, however, that in cases where courts find employee misconduct serious enough for dismissal, back-pay awards could be limited and the employee need not be reinstated.

"Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information," Justice Kennedy said.

Taking Documents

The case before the High Court involved Christine McKennon, age 62, a longtime secretary for a Nashville publishing company who was laid off amid budgetary concerns.

After she was replaced by a 26-year-old employee, Ms. McKennon sued under the federal Age Discrimination in Employment Act of 1967. The law is modeled on Title VII of the Civil Rights Act of 1964, which bars workplace discrimination based on race, sex, religion, and national origin.

During the "discovery" phase of her suit, Ms. McKennon admitted during a deposition that she had taken home several confidential documents about the company's financial condition.

The publishing company conceded during the case that its dismissal of Ms. McKennon was discriminatory, but it argued that her later admission about the documents provided a legitimate basis for her discharge. Two lower federal courts agreed, and Ms. McKennon's suit was dismissed.

Federal appeals courts have been split on the issue of after-acquired evidence, so the Supreme Court stepped in to settle the question.

Exposing Discrimination

In rejecting the use of after-acquired evidence of wrongdoing, Justice Kennedy stated that employees who sue alleging discrimination are seeking not only compensation for their own mistreatment, but also a gesture that will prod employers to re-examine their personnel practices and eliminate all discrimination.

"The objectives of the A.D.E.A. furthered when even a single employee establishes that an employer has discriminated against him or her," he wrote.

Justice Kennedy said that the federal courts could consider the after-acquired evidence in deciding on a remedy in a job-bias case.

Victims of discrimination who were later cited for legitimate misconduct could recover back pay for the period between the illegal discharge and the discovery of the new information.

Gwendolyn H. Gregory, the deputy general counsel of the National School Boards Association, said that even though the High Court ruled against the employer, the decision was not a "big loss" for school administrators.

She said she doubted whether many school districts had relied on the after-acquired-evidence tactic to win discrimination suits.

"I don't think it is the kind of tool that responsible employers really want," Ms. Gregory said.

Swim Suit

In a separate action last week, the High Court rejected an appeal from several male swimmers at the University of Illinois who argued that the university's elimination of their sport was a form of reverse discrimination under Title IX of the Education Amendments of 1972.

In 1993, the university dropped men's swimming but kept the women's swim team. The school cited budget reasons for cutting three men's and one women's varsity sports. But women's swimming was kept, it said in court papers, so the school would not violate Title IX, which forbids sex discrimination in federally supported education programs.

The swimmers' appeal was Kelley v. Board of Trustees of the University of Illinois (No. 94-1091).

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