Module 2 Reinforcement Activity After-Acquired Evidence An organization discriminates against an older employee when deciding layoffs. The employee files suit for age discrimination. During depositions, the employee admits that she copied confidential financial documents and showed them to her husband as “insurance” and “protection” should layoffs occur. The organization sends the employee a letter stating that removal and copying of the records was in violation of her job responsibilities and advising her (again) that she was terminated. The letter also stated that if it had known of the employee’s misconduct it would have discharged her at once for that reason. Module 2, Activity 1, Slide 1© SHRM

Module 2 Reinforcement Activity After-Acquired Evidence: Q1 Does the employee’s action cancel out the company’s discriminatory action? Module 2, Activity 1, Slide 2© SHRM

Module 2 Reinforcement Activity After-Acquired Evidence: Q1 Feedback Does the employee’s action cancel out the company’s discriminatory action? No. In McKennon v. Nashville Banner Publishing Company (1995), the Supreme Court held that “after-acquired” evidence does not defeat an employer’s liability for violating the ADEA. Even if the employee’s later-discovered misconduct could be considered grounds for termination, the ADEA violation that actually prompted the dismissal cannot be ignored. Module 2, Activity 1, Slide 3© SHRM

Module 2 Reinforcement Activity After-Acquired Evidence: Q2 Does the employee’s action affect the remedy available to the employee? Module 2, Activity 1, Slide 4© SHRM

Module 2 Reinforcement Activity After-Acquired Evidence: Q2 Does the employee’s action affect the remedy available to the employee? Yes. The Court concluded that the proper boundaries of remedial relief must be addressed on a case-by- case basis. In an after-acquired evidence argument, the employer must first establish that the wrongdoing was so severe that the employee would have been terminated on those grounds alone. If this is true, neither reinstatement nor front pay is an appropriate remedy, and back pay should run only from the date of the unlawful discharge to the date the new information was discovered. Module 2, Activity 1, Slide 5© SHRM

Module 2 Reinforcement Activity Interviewing PermittedNot Permitted I see that you have served in the military service. Do you have a type of discharge that makes you ineligible for reemployment? Module 2, Activity 2, Slide 6© SHRM

Module 2 Reinforcement Activity Interviewing PermittedNot Permitted I see that you have served in the military service. Do you have a type of discharge that makes you ineligible for reemployment?  Have you been arrested in the past? Module 2, Activity 2, Slide 7© SHRM

Module 2 Reinforcement Activity Interviewing PermittedNot Permitted I see that you have served in the military service. Do you have a type of discharge that makes you ineligible for reemployment?  Have you been arrested in the past?  Do you have relatives employed at our company? Module 2, Activity 2, Slide 8© SHRM

Module 2 Reinforcement Activity Interviewing PermittedNot Permitted I see that you have served in the military service. Do you have a type of discharge that makes you ineligible for reemployment?  Have you been arrested in the past?  Do you have relatives employed at our company?  Do you have a legal right to be employed in the U.S.? Module 2, Activity 2, Slide 9© SHRM

Module 2 Reinforcement Activity Interviewing PermittedNot Permitted I see that you have served in the military service. Do you have a type of discharge that makes you ineligible for reemployment?  Have you been arrested in the past?  Do you have relatives employed at our company?  Do you have a legal right to be employed in the U.S.?  What does your spouse do? Module 2, Activity 2, Slide 10© SHRM

Module 2 Reinforcement Activity Interviewing PermittedNot permitted I see that you have served in the military service. Do you have a type of discharge that makes you ineligible for reemployment?  Have you been arrested in the past?  Do you have relatives employed at our company?  Do you have a legal right to be employed in the U.S.?  What does your spouse do?  I graduated from the university, too. What year did you graduate? Module 2, Activity 2, Slide 11© SHRM

Module 2 Reinforcement Activity Interviewing PermittedNot Permitted I see that you served in the military. Do you have a type of discharge that makes you ineligible for reemployment?  Have you been arrested in the past?  Do you have relatives employed at our company?  Do you have a legal right to be employed in the U.S.?  What does your spouse do?  I graduated from the university, too. What year did you graduate?  Module 2, Activity 2, Slide 12© SHRM