This year, the Supreme Court was presented for the first time with the issue of whether after-acquired evidence of an employee's misconduct should bar all recovery for an employee who has been discriminatorily discharged. This Note discusses how the recent McKennon v. Nashville Publishing Co. decision will affect both employers and employees. First, a brief overview will be provided explaining the legal status of the after-acquired evidence doctrine in the circuit courts as it existed immediately prior to the decision in McKennon. Second, the facts and the holding of the McKennon decision will be discussed. Third, an examination will be undertaken as to why the Court and supporting authorities determined that after-acquired evidence should be irrelevant in determining the employer's liability. Fourth, a showing will be made that though after-acquired evidence should perhaps limit a plaintiff's equitable remedies in appropriate cases, it should be irrelevant in determining legal remedies. Included therein will be a proposal for a more equitable calculation for backpay than the Court in McKennon provided. In conclusion, this Note seeks to extend the positive steps offered in McKennon by offering a proposal to balance the competing goals of 1) providing a workplace free of discrimination and harassment, which will 2) encourage employees to be honest both when filling out employment applications and after they are hired and working for the employer.
Carolyn L. Whitford,
While the United States Supreme Court Waves Goodbye to the After-Acquired Evidence Doctrine, It May Allow the Employer to Hold a Card Up Its Sleeve in McKennon v. Nashville Publishing Co., 115 S. Ct. 879 (1995),
74 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol74/iss2/6