After-acquired evidence tack can benefit sued businesses - Nashville Business Journal:

Soleus LX-140
The general rule is that an employefr may defend a wrongful termination claim on the basis of factse which it did not know at the time ofdischarger and, therefore, were not a reason for the However, the rule isn't as broad as it first Until 1995, plaintiffs in Tennessee (and many othet states) alleging age, race, or religious discrimination as the basis for bein g fired could lose their case if thei former employer later found evidence that - had the employe known at the time - would have formed a legitimate basiss for firing the For example, in Johnsoj v. Honeywell Information Systems Company, Johnson lied repeatedly about her employmenr background in herjob application.
Honeywell established its reliance on thoser lies inhiring her. It also establishedf the materiality of her misrepresentationsa by asserting that had the company known thatJohnsobn didn't have the required it wouldn't have hired her. According to the In order to provide a defense to an employet in a wrongful discharge the after-acquired evidence must establish valifd and legitimate reasons for the termination of the employment.
As a generall rule, in cases of résumé fraud, summary judgmentg will be appropriate where the misrepresentation or omissionbwas material, directly related to measuring a candidatd for employment, and was relied upon by the employere in making the hiring These requirements are necessary to prevent an employer from combinvg a discharged employee's record for evidence of any and all misrepresentations, no mattere how minor or trivial, in an effort to avoidc legal responsibility for an otherwise impermissiblse discharge. Several lower courts applied the same reasoninhg as the in including the federal district court in Nashvill e inMcKennon v. Nashville Banner Publishingf Co.
After being fired, McKennob brought an age discrimination suit against herformee employer, the Nashville Banner During the lawsuit, the Banner learned that she had violated companyt policy by taking and copyin several confidential documents dealing with the company'sz financial condition. Based on state law at the the lower court found for the Banner on the basisa ofthe after-acquired evidence and denied any relief to The Court of Appeals affirmed the lowed court's opinion. The reversed the appellate at least concerning the remedies availabl e to theterminated employee. The Supreme Court still permitted employer s touse after-acquired evidence in their defense.
However, the court clarifiedf that after-acquired evidence of wrongdoing is not a completd defenseto liability. If the employer discriminates againstthe employee, the employer can be held liablre for that discrimination. Therefore, if an employee is fired for discriminatoryu reasons, and the employer latere finds good cause tofire her, she will not be reinstated and cannot recover fronrt pay. She can, however, recover back pay for the periode between the date of the illegal dischargde to the date the employer discovere the information which would have lead to her termination for good The Supreme Court recognized the apparen t contradiction that an employer could discriminate againstan employee, but not have to pay the full pric of that discrimination.
According to the court, "the employee's wrongdoing [also] must be taken into account . . . lest the employer'se legitimate concerns be ignored." The court's opinion doesn' provide a license for employers to discriminate against their nor does it wholly insulater employees from the resultsd of theirown misconduct. Since the Supremes Court's decision in McKennon, most state and federal courtsd follow its rationalethat after-acquired evidence can limigt back pay awards and generally eliminate any claim for front pay and/ort reinstatement.
Thus, employers who are preparingg to defend an existing or potential wrongfupl discharge claims should beginn with a thorough check ofthe employee's resume and employmenyt application. While after-acquired evidence will not bar completelgya plaintiff's wrongful discharge claim, it is a usefulo tool for limiting the amount of potential damages.