Randi Kochman spoke with Law360 regarding "after-acquired" evidence in employment discrimination suits.
"It really ... limits the potential damages the employee has," said Randi Kochman, chair of the employment law department at Cole Schotz Meisel Forman & Leonard PA.
As Kochman and other attorneys explained, courts have generally looked to a 1995 U.S. Supreme Court ruling in McKennon v. Nashville Banner Publishing Co. as a starting point when after-acquired evidence issues crop up in an employment discrimination case.
But while after-acquired evidence of an employee's misconduct can limit damages in discrimination cases, attorneys explained that to use that sort of evidence as a defense, employers must meet certain requirements. The key requirement is to demonstrate that an employee engaged in conduct so egregious that the company would have fired that employee if it had known about the conduct, according to Kochman.
Employers may have to show that they fired another employee for a similar type of misconduct, or that the employee's behavior violated a company policy that would have resulted in the termination of that person's employment, she said.
"It has to be pretty bad because the employer has to show that the employee would have been fired," Kochman said.
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