New York residents who believe that they have been victims of workplace discrimination and want to file a complaint should be aware that the employer may counter with a variety of defenses. This may include the after-acquired evidence defense, which is any information the employer will find about the employee after he or she has been fired and is the behavior that the employer would have used as cause to terminate the employee even if there had been no discrimination.
The Supreme Court addressed this defense in a 1995 decision and determined that an employee could still prove the discrimination, even with the existence of after-acquired evidence, but the evidence could negatively affect the damages awarded to the employee. For example, it could affect how much back pay a discrimination victim could receive by limiting the amount from when the employee was fired to when the employer discovered the employee's misconduct.
To use an after-acquired evidence defense, an employer has to present evidence of the employee's work misconduct and job performance issues. When an employer learns that an individual will file an employment discrimination lawsuit, it will closely examine the employee's personnel file. Co-workers may be interviewed, and the employee's performance for years prior to the complaint will be critically assessed.
The after-acquired evidence defense may also help the employer win the suit. According to a ruling by a federal appellate court, the evidence of misconduct can be used to support the valid, non-discriminatory cause for an employee's termination. An attorney could provide assistance to individuals who have been victims of employment discrimination and subsequent termination.