In 1995, the United States Supreme Court formulated the after-acquired evidence defense in employment discrimination litigation. The defense, if successfully established, allows the defendant to limit the damages available to the plaintiff. In order to assert the defense, a defendant must establish that it would have terminated the plaintiff based on after-acquired evidence of wrongdoing if the defendant had known of the wrongdoing prior to the termination. The defense, as generally accepted, applies to misconduct that occurs during employment and misconduct that occurs prior to employment in the application process. This note considers the potential expansion of the defense to include the plaintiff’s post-termination misconduct and ultimately argues in support of that conclusion.
Holly G. Eubanks,
Expanding the After-Acquired Evidence Defense to Include Post-Termination Misconduct,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol89/iss2/12