Employers in California and around the country sometimes mount what is known as an after-acquired evidence defense when workers claim that they have been fired unfairly, and this strategy is sometimes successful even when discrimination based on gender, religion, race, age or national origin can be proven. Employers mount this kind of defense when they uncover information about the worker in question that would have led to termination for misconduct. Companies basically concede that they discriminated but would have fired the complaining worker anyway if they had known at the time what they subsequently learned.
This issue was addressed by the U.S. Supreme Court in 1995. The nation's highest court ruled that evidence of misconduct cannot prevent employees from pursuing job discrimination claims, but it may limit the amount of damages they are entitled to. For example, the amount of back pay awarded could be limited to the period between the unfair dismissal and the discovery of the misconduct.
However, employers must generally be able to establish that the misconduct they discovered was severe enough to warrant termination in order to successfully mount an after-acquired evidence defense to discrimination claims. This may be done by showing that other workers have been fired for the same kind of behavior.
Attorneys with experience in this area may anticipate these types of arguments when they take on unfair dismissal cases, and they may urge workers who plan to file these complaints to be as candid as possible about their on-the-job conduct. Full disclosure is important in these situations because employers often scour work records and interview coworkers when discrimination has been alleged. When workers concede that they may have violated company policies, attorneys could seek to find out what kind of disciplinary action was taken against other employees who committed similar violations.