Orange County Employment Lawyers Blog
It’s common practice for employers accused of discrimination against their workers to try to dig up dirt about the workers’ past – anything that might help bolster their case. But can the evidence acquired after the employee had been disparately treated be used to justify those actions? 
“After-acquired evidence” is proof of employee misconduct that an employer discovers after the employee’s been discharged on other grounds (often after an California employment lawsuit has been filed). Courts have debated for years whether such evidence can be used as a defense in employment litigation.
A few years ago, the California Supreme Court significantly limited the use of the defense in employment discrimination cases.
The instructive case our Los Angeles employment lawyers refer to when this question arises is Salas v. Sierra Chemical Co. In this matter, plaintiff sued his former employer under the California Fair Employment and Housing Act, alleging the company failed in its legal obligation to accommodate his physical disability and refused to rehire him in retaliation for filing a workers’ compensation claim.
After this claim was filed, the employer was made aware of information indicating that the plaintiff had used someone else’s Social Security number in order to gain employment in the first place. The employer used this to file a motion for summary judgment in its favor. The trial court initially denied this motion, but than issued an alternative write effectively granting it – an action the appellate court affirmed. The California Supreme Court, however, reversed.
In that case, the state high court held that even if a company hired a worker without legal documentation to work in the U.S. – whether they knew it or not, and regardless of whether the employee had committed a crime to do so – the employer still doesn’t have the right to discriminate against those workers. In Salas, plaintiff alleged the employer became aware of his lack of lawful immigration status after he was hired, but was told it didn’t matter so long as the company president liked his work. But it became an issue after he suffered a work injury and the company allegedly would not accommodate his modified duties and then refused to rehire him following a seasonal layoff unless/until he was able to resume full duties.
If evidence of the employee’s unlawful immigration status or prior crimes was known (or should have been known) and wasn’t considered in the hiring and/or continued employment of the person, the company can’t turn around and use it as pretext to discriminate against them.
Prior to this ruling, the first after-acquired defense case was the 1995 U.S. Supreme Court ruling in the case of McKennon v. Nashville Banner Publishing Co. held that while after-acquired evidence wouldn’t prevent an employee from proving discrimination, it could potentially be used to limit the amount of financial damages they could collect.
After that, the U.S. Court of Appeals for the Tenth Circuit had concluded that after acquired evidence could be used as an absolute bar in employment discrimination cases. Then the U.S. Court of Appeals for the Eleventh Circuit, which has jurisdiction over California, and the U.S. Court of Appeals for the Third District, disagreed.
The U.S. Supreme Court has rejected the ruling by the 10th Circuit, reasoning an employee’s wrongdoings may be relevant to a case, but only if the employer can show the adverse action would have been taken if the company would have learned about the misconduct sooner. In that case, it still doesn’t bar the claim, but might reduce the amount a plaintiff is entitled to collect if they win.
Bottom line: After-acquired evidence could hurt your case, but it won’t bar it entirely.
Contact the employment attorneys at Nassiri Law Group, practicing in Newport Beach, Riverside and Los Angeles. Call 714-937-2020.
Additional Resources:
McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), Jan. 23, 1995, U.S. Supreme Court
More Blog Entries:
Myths About California Wrongful Termination Claims, April 18, 2023, Los Angeles Employment Lawyer Blog