Evidence acquired after illegal firing can't justify it


January 29, 1995|By DEBORAH JACOBS | DEBORAH JACOBS,Chronicle Features

Christine McKennon was 62 years old when she was fired -- supposedly as part of staff reductions -- from her job as a secretary at the Nashville Banner Publishing Co. After the company hired a much younger person to take her place, Ms. McKennon, who had been with the company for nearly 40 years, sued for age discrimination.

Months later, Ms. McKennon hit a significant roadblock. In the course of a pretrial deposition -- a routine questioning under oath -- Ms. McKennon admitted that the year before she was fired, she had copied confidential documents from the company files. She claimed she did so for "insurance" and "protection" because she was afraid of being fired. Ms. McKennon also wanted to show the material to her husband.

What she did was against company rules, Nashville Banner then argued in court. Had the company known about the misconduct sooner, it would have discharged Ms. McKennon immediately. Although the company admitted that it had discriminated, Ms. McKennon should not be able to bring her age-bias claim to court, it said.

A federal district court in Nashville, Tenn., agreed, and dismissed the case. Ms. McKennon appealed -- first to the U.S. Court of Appeals for the 6th Circuit, and then to the U.S. Supreme Court. Last week, more than four years after Ms. McKennon's discharge, the Court ruled in her favor.

"The employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason," wrote Justice Anthony M. Kennedy in the Court's decision.

From now on, courts cannot throw out discrimination claims simply because of what lawyers call "after-acquired evidence." In this context, that means coming up with another basis for firing someone when the first reason turns out to be illegal. In recent years, digging for after-acquired evidence has become a popular strategy. Courts have been receptive to a variety of excuses: that an employee faked a resume, or lied on an employment application, for instance.

The latest ruling will discourage witch-hunts for this kind of information, but it also sends a clear message to employees that violating company policy can hurt them if they someday sue for discrimination. Normally in such cases, employees can recover back pay from the time they lost their jobs until they collect a judgment. People who could have been fired for breaking the rules are entitled to back pay only "from the date of the unlawful discharge to the date the new information was discovered," the Court found. Nor can a court order the company to rehire these people, it said.

What are the lessons for future bias cases? Lawyers routinely advise people who are still employed at a company to gather information that could help prove a discrimination claim. As a rule of thumb, take only material that you would be permitted to have in the normal course of business, says Cliff Palefsky, a San Francisco employment lawyer. Examples include copies of written performance reviews, any notes you make about events at the office, and the employment manual.

Deborah Jacobs, a business writer specializing in legal topics, regularly contributes to the New York Times, Wall Street Journal, Forbes and Newsweek. Write to her c/o Chronicle Features, 870 Market St., Suite 1011, San Francisco, Calif. 94102. Please include your name, address and telephone number.

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