After-Acquired Evidence: Tonic for an Employer's Cognitive Dissonance

During the last thirty years, there have been dramatic changes in the law governing job security of employees in the workplace, particularly with regard to employment discrimination. Federal law now protects employees from workplace discrimination based upon sex," race, religion, color, national origin," age, and handicap or disability. The latest in the arsenal of defense weapons developed by employers is the "after-acquired evidence doctrine." This affirmative defense, which was first announced by the Tenth Circuit in 1988, allows an employer who has acted adversely toward an employee for an unlawful discriminatory reason to avoid liability as a matter of law, if, subsequent to the employee's discharge, the employer uncovers evidence of misconduct or dishonesty which was unknown to the employer at the time of discharge, and the employer demonstrates that had it known earlier of the misconduct or dishonesty, it would have discharged the employee.' The after-acquired evidence doctrine is flawed in several ways. This Article proposes that after-acquired evidence which is obtained solely as a result of employment discrimination litigation, whether through the discovery process or through an internal investigation conducted by the defendant employer in response to an employee's claim, generally should be inadmissible.