Module 2 Reinforcement Activity
After-Acquired Evidence
An organization discriminates against an older employee
when deciding layoffs. The employee files suit for age
discrimination. During depositions, the employee admits
that she copied confidential financial documents and
showed them to her husband as “insurance” and
“protection” should layoffs occur. The organization sends
the employee a letter stating that removal and copying of
the records was in violation of her job responsibilities and
advising her (again) that she was terminated. The letter
also stated that if it had known of the employee’s
misconduct it would have discharged her at once for that
reason.
© SHRM
Module 2, Activity 1, Slide 1
Module 2 Reinforcement Activity
After-Acquired Evidence: Q1
Does the employee’s action cancel out the
company’s discriminatory action?
© SHRM
Module 2, Activity 1, Slide 2
Module 2 Reinforcement Activity
After-Acquired Evidence: Q1 Feedback
Does the employee’s action cancel out the
company’s discriminatory action?
No. In McKennon v. Nashville Banner Publishing
Company (1995), the Supreme Court held that
“after-acquired” evidence does not defeat an
employer’s liability for violating the ADEA. Even if
the employee’s later-discovered misconduct could
be considered grounds for termination, the ADEA
violation that actually prompted the dismissal
cannot be ignored.
© SHRM
Module 2, Activity 1, Slide 3
Module 2 Reinforcement Activity
After-Acquired Evidence: Q2
Does the employee’s action affect the
remedy available to the employee?
© SHRM
Module 2, Activity 1, Slide 4
Module 2 Reinforcement Activity
After-Acquired Evidence: Q2
Does the employee’s action affect the remedy
available to the employee?
Yes. The Court concluded that the proper boundaries
of remedial relief must be addressed on a case-bycase basis. In an after-acquired evidence argument,
the employer must first establish that the wrongdoing
was so severe that the employee would have been
terminated on those grounds alone. If this is true,
neither reinstatement nor front pay is an appropriate
remedy, and back pay should run only from the date
of the unlawful discharge to the date the new
information was discovered.
© SHRM
Module 2, Activity 1, Slide 5
Module 2 Reinforcement Activity
Interviewing
Permitted
Not Permitted
I see that you have served in the military
service. Do you have a type of discharge
that makes you ineligible for
reemployment?
© SHRM
Module 2, Activity 2, Slide 6
Module 2 Reinforcement Activity
Interviewing
Permitted
I see that you have served in the military
service. Do you have a type of discharge
that makes you ineligible for
reemployment?
Not Permitted

Have you been arrested in the past?
© SHRM
Module 2, Activity 2, Slide 7
Module 2 Reinforcement Activity
Interviewing
Permitted
I see that you have served in the military
service. Do you have a type of discharge
that makes you ineligible for
reemployment?
Have you been arrested in the past?
Not Permitted


Do you have relatives employed at our
company?
© SHRM
Module 2, Activity 2, Slide 8
Module 2 Reinforcement Activity
Interviewing
Permitted
I see that you have served in the military
service. Do you have a type of discharge
that makes you ineligible for
reemployment?


Have you been arrested in the past?
Do you have relatives employed at our
company?
Not Permitted

Do you have a legal right to be employed
in the U.S.?
© SHRM
Module 2, Activity 2, Slide 9
Module 2 Reinforcement Activity
Interviewing
Permitted
I see that you have served in the military
service. Do you have a type of discharge
that makes you ineligible for
reemployment?


Have you been arrested in the past?
Do you have relatives employed at our
company?
Do you have a legal right to be employed
in the U.S.?
Not Permitted


What does your spouse do?
© SHRM
Module 2, Activity 2, Slide 10
Module 2 Reinforcement Activity
Interviewing
Permitted
I see that you have served in the military
service. Do you have a type of discharge that
makes you ineligible for reemployment?


Have you been arrested in the past?
Do you have relatives employed at our
company?
Do you have a legal right to be employed in
the U.S.?
What does your spouse do?
Not permitted



I graduated from the university, too. What year
did you graduate?
© SHRM
Module 2, Activity 2, Slide 11
Module 2 Reinforcement Activity
Interviewing
Permitted
I see that you served in the military. Do you
have a type of discharge that makes you
ineligible for reemployment?
Not Permitted


Have you been arrested in the past?
Do you have relatives employed at our
company?

Do you have a legal right to be employed in
the U.S.?

What does your spouse do?

I graduated from the university, too. What year
did you graduate?

© SHRM
Module 2, Activity 2, Slide 12