McKennon v. Nashville Banner Publishing Co. Brief Amicus Curiae in Support of the Petitioner

    No. 93-1543

In  T h e

m p r e r n e  C o u r t  o f  tire  ' M t i i i t b  S t a t e s

O ctober  T erm , 1993

CHRISTINE McKENNON,
Petitioner,

v.

NASHVILLE BANNER PUBLISHING CO.,
Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

BRIEF OF
THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS 
UNDER LAW, THE AMERICAN CIVIL LIBERTIES 
UNION, AND THE AMERICAN ASSOCIATION OF 

RETIRED PERSONS
AS AMICI CURIAE IN SUPPORT OF THE PETITIONER

MICHAEL A. COOPER 
Co-Chair

NORMAN REDLICH, Trustee 
BARBARA R. ARNWINE 
THOMAS J. HENDERSON 
RICHARD T. SEYMOUR 
SHARON R. VINICK 

Lawyers’ Committee for 
Civil Rights Under Law 
1450 G Street, Suite 400 
Washington, D.C. 20005 
(202) 662-8600

WILLIAM F. SHEEHAN 
(Counsel of record)

WILLIAM D. WEINREB 
AMY HORTON 

Shea & Gardner 
1800 Massachusetts Ave., N.W. 
Washington, D.C. 20036 
(202) 828-2000

STEVEN R. SHAPIRO 
HELEN HERSHKOFF 
SARA L. MANDELBAUM 

American Civil Liberties
CATHY VENTRELL-MONSEES Union Foundation

American Association of 132 West 43 Street
Retired Persons New York, N.Y. 10036
601 E Street, N.W. (212) 944-9800
Washington, D.C. 20049 
(202) 434-2060

Counsel for A m ici Curiae
July 21, 1994



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES...................................  iii

INTEREST OF THE AMICI CURIAE . . . ___ . . .  1

SUMMARY OF ARGUM ENT......... ...................... 3

ARGUMENT ...........................................................  6

I. THE LOWER COURT ERRED IN RULING 
THAT PETITIONER WAS NOT INJURED BY 
THE VIOLATION OF HER ADEA RIGHTS 6

II. CONGRESS DID NOT INTEND FOR 
AFTER-ACQUIRED EVIDENCE OF 
EMPLOYEE MISCONDUCT TO DENY ALL 
RELIEF FOR VIOLATIONS OF THE
FAIR EMPLOYMENT LAWS ......................  10

A. The After-Acquired Evidence Rule Is 
Inconsistent With the Text of the
Fair Employment Laws ...................   10

B. The After-Acquired Evidence Rule Defeats 
the Deterrent and Compensatory Purposes
of the Fair Employment Laws . . . . . . . . .  12

C. The After-Acquired Evidence Rule Has
Been Rejected Under Other Federal 
Statutory Schemes ....................................  17

1. Employment-related
statutes ..............................................  17

2. Common-law fault-based 
defenses ........................ 22



11

III. AFTER-ACQUIRED EVIDENCE MAY AFFECT 
THE REMEDIES AVAILABLE IN 
PARTICULAR CASES........... .......... . . . . . .  23

A. Backpay............................................  26

B. Reinstatement and Front Pay . . . . . . . . .  27

C. Compensatory Damages ...........................  29

D. Liquidated Damages ....................  29

CONCLUSION ..........................................   30

Page



Ill

TABLE OF AUTHORITIES

ABF Freight System, Inc. v. NLRB,__ U.S.___ ,
114 S. Ct. 843 (1994)...............................  20

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) .................................. passim

Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974)...................................  15

Anastasio v. Schering Corp.,
838 F.2d 701 (3d Cir. 1988) ....................  26

Axelson, Inc., 285 N.L.R.B. 862 (1987) . . .  20
Bartek v. Urban Redevelop. Auth.,

882 F.2d 739 (3d Cir. 1989) ....................  26
Bateman Eichler, Hill Richards, Inc. v. Berner,

472 U.S. 299 (1985).................................  5, 22
Bigelow v. RKO Radio Pictures, Inc.,

327 U.S. 251 (1946)................................. 27
Bonger v. American Water Works,

789 F. Supp. 1102 (D. Colo. 1992) .........  25
Carter v. Sedgwick County, Kan.,

929 F.2d 1501 (10th Cir. 1991)................ 28
Cooper v. Federal Reserve Bank,

467 U.S. 867 (1984).................................  6
Duffy v. Wheeling Pittsburgh Steel Corp.,

738 F.2d 1393 (3d Cir.), cert, denied,
469 U.S. 1087 (1984) ...............................  24

Duke v. Uniroyal Inc.,
928 F.2d 1413 (4th Cir.), cert, denied,
112 S. Ct. 429 (1991)..... ........................ 27, 28

Floca v. Homcare Health Servs., Inc.,
845 F.2d 108 (5th Cir. 1988) ....................  28

Ford Motor Co. v. EEOC,
458 U.S. 219 (1982).................................  12, 13, 16

Franklin v. Gwinnett County Public Schools,
503 U.S.__ , 112 S. Ct. 1028 (1992)___  29

Franks v. Bowman Transp. Co.,
424 U.S. 747 (1976).................................  passim

Page



IV

Gibson v. Mohawk Rubber Co.,
695 F.2d 1093 (8th Cir. 1982).................. 12, 26, 27

Ginsberg v. Burlington Indus., Inc.,
500 F. Supp. 696 (S.D.N.Y. 1980)...........  28

Goldberg v. Bama Mfg. Corp.,
302 F.2d 152 (5th Cir. 1962).................... 19

Gypsum Carrier, Inc. v. Handelsman,
307 F.2d 525 (9th Cir. 1962).................... 18

Harris v. Forklift Systems, Inc.,__ U.S. ___,
114 S. Ct. 367 (1993)...............................  29

Hawley v. Dresser Indus., Inc.,
958 F.2d 720 (6th Cir. 1992)....................  24

Hazen Paper Co. v. Biggins,
113 S. Ct. 1701 (1993) ........... .................  7

Hill v. Spiegel, Inc.,
708 F,2d 233 (6th Cir. 1983).................... 26

Houghton v. McDonnell Douglas Corp.,
627 F.2d 858 (8th Cir. 1980) . ..................  28

International Bhd. of Teamsters v. United States,
431 U.S. 324 (1977).................... ............  12, 27

John Cuneo, Inc., 298 N.L.R.B. 856 (1990) 20
Lorillard v. Pons, 434 U.S. 575 (1978)___  6, 19, 26
McDonald v. Santa Fe Trail Transp. Co.,

A ll U.S. 273 (1976)  ...................... . 11, 27
McDonnell Douglas v. Green, 411 U.S. 792 (1973) 25, 27
McKnightv. General Motors Corp.,

908 F.2d 104 (7th Cir. 1990),
cert, denied, 499 U.S. 919 (1991)........... .. 28

Meritor Savings Bank v. Vinson,
A ll U.S. 57 (1986)...................................  29

Milligan-Jensen v. Michigan Technological Univ.,
975 F.2d 302 (6th Cir. 1992), cert, dismissed,
114 S. Ct. 22 (1993).................................  3, 7

Minneapolis, St. P. & S. Ste. M. Ry. v. Rock,
219 U.S. 410 (1929)................................. 18

Page



V

Mt. Healthy City School District Board of 
Education v. Doyle, 429 U.S. 274 (1977) . 4, 8, 9, 23

Newport News Shipbuilding & Dry Dock Co.
v. Hall, 61A F.2d 248 (4th Cir. 1982) . . . .  18

Omar v. Sea-Land Serv., Inc.,
813 F.2d 986 (9th Cir. 1987)....................  18

Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979) 12
Perma Life Mufflers, Inc. v. International

Parts Corp., 392 U.S. 134 (1968).............  5, 22
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) 4, 8
Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir.

1977), cert, denied, 436 U.S. 913 (1978) . . 12, 15, 28
St. Mary’s Honor Ctr. v. Hicks, 509 U.S.__ ,

113 S. Ct. 835 (1993)...............................  17, 20, 21
Stacey v. Allied Stores Corp., 768 F. 2d 402

(D.C. Cir. 1985)............................... .. 26
Still v. Norfolk &W.Ry., 368 U.S. 35

(1961) . ......................... ................  5, 17, 29
Summers v. State Farm Mut Auto Ins. Co.,

864 F.2d 700 (10th Cir. 1988).................. passim
Taylor v. Teletype Corp., 648 F.2d 1129 

(8th Cir.), cert denied, 454 U.S. 969
(1981) ............................................  27

Trans World Airlines, Inc. v. Thurston,
469 U.S. I l l  (1985) .................................. 6, 29, 30

United States v. Burke, 112 S. Ct. 1867 (1992) 24, 28
United States Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711 (1983) ....................  6

Wallace v. Dunn Constr. Co.,
968 F.2d 1174 (11th Cir. 1992)...............  passim

Washington v. Lake Country, III.,
969 F.2d 250 (7th Cir. 1992)....................  7, 25

Welch v. Liberty Machine Works,
1994 U.S. App. LEXIS 10028,
23 F.3d 1403 (8th Cir. Jan. 13, 1994) . . .

Page

24, 25



STATUTES:

Age Discrimination in Employment Act,
29 U.S.C. § 621 et seq. .......................... .. passim
§ 4(a), 29 U.S.C. § 623(a) . _____ _____ _ 6
§ 7(b), 29 U.S.C. § 626(b) . . . . . . . . . . .  11, 29

Civil Rights Act of 1991, adding 
Rev. Stat. § 1977A, 42 U.S.C. § 1981a . . 29

Fair Labor Standards Act,
29 U.S.C. § 201 et seq. ...................... 11

Title VII of the 1964 Civil Rights Act,
42 U.S.C. § 2000e et s e q .............. .. passim
§ 703(a), 42 U.S.C § 2000e-(2)(a) .........  6
§ 7030, 42 U.S.C. § 2000e-(2)(j)___ _ . 24

OTHER AUTHORITIES:

Annual Report of the Director of the Administrative
Office of the United States Courts . . ...........  15
Brunsman, Steve, Resume Fraud, Lying 

Not at All Uncommon, Houston Post,
Sept. 26, 1992, at E2 . . _____ . . . ____ _ 15

Crider, Dale, Resume Fraud Complicates Firing 
Claims, Nat’l LJ., Dec. 7, 1992, at 17 . . . 15

EEOC: Revised Enforcement Guide on Recent 
Developments in Disparate Treatment Theory,
Fair Empl. Prac. Man. (BNA) 405:6915 (1992) passim 

Groner, Jonathan, New Defense for Bias Suits:
Attack, Fulton County Daily Report,
Mar. 12, 1993, at 1 ...................................  14

Kelly, Dennis, Lies Part of Students’ Lives,
USA Today, Nov. 13, 1992, at 1 .............  14

Labich, Kenneth, The New Crisis in Business 
Ethics, Fortune, Apr. 20, 1992, at 167 . . . 14

vi

Page



Vll

Maddux, David A., & Douglas A. Barritt,
Employees’ Lies Can Backfire:
Misconduct May Bar Employment Suits,
Nat’l LJ., May 10, 1993, at 25 ................ 14

Many Falsify Credentials, Qualifications,
Atlanta Constitution,
May 11, 1992, at B 5 .................................  14

Mesritz, George C .,"'After-Acquired" Evidence 
of Pre-Employment Misrepresentations:
An Effective Defense Against Wrongful 
Discharge Claims,
18 Employee Rel. LJ. 215 (1992) ............ 14

Rigdon, Joan E., Deceptive Resumes Can Be 
Door-Openers But Can Become an Employee’s 
Undoing, Wall St. J., June 17, 1992, at B1 15

White, Rebecca H., & Robert D. Brussack,
The Proper Role of After-Acquired Evidence in 
Employment Discrimination Litigation,
35 B.C. L. Rev. 49 (1993)........................  3

Witus, Morley, Defense of Wrongful Discharge 
Suits Based on an Employee’s Misrepresentations,
69 Mich. B.J. 50 (1990)

Page

14



INTEREST OF THE AMICI CURIAE1

The Lawyers’ Committee for Civil Rights Under Law 
is a nonprofit organization that was established at the 
request of the President of the United States in 1963 to 
involve leading members of the bar throughout the country 
in the national effort to ensure civil rights to all Americans. 
The disposition of the case at bar, arising under the Age 
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 
621 et seq., will affect the availability of relief to victims of 
unlawful employment practices under other federal statutes, 
including Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§ 2000e et seq., and other antidiscrimination statutes. The 
Lawyers’ Committee has represented, and has assisted other 
lawyers in representing, numerous plaintiffs in administrative 
proceedings and lawsuits under Title VII in the lower courts. 
See, e.g., Lewis v. Bloomsburg Mills, Inc., 773 F.2d 561 (4th 
Cir. 1985); Payne v. Travenol Labs., Inc., 673 F.2d 798 (5th 
Cir. 1982).

The Lawyers’ Committee has also represented parties 
and participated as amicus curiae in ADEA and Title VII 
cases before this Court. See, e.g., Gilmerv. Interstate!Johnson
Lake Corp.,__ U.S.___ , 112 S. Ct. 1647 (1991); Landgraf
v. USI Film Prods.,__ U.S.___ , 114 S. Ct. 1483 (1994); St.
Mary’s Honor Ctr. v. Hicks,__  U .S.__ , 113 S. Ct. 2742
(1993); Wards Cove Packing Co. v. Atonio, 490 U.S. 642 
(1989). The Committee appeared most recently as an
amicus in ABF Freight System, Inc. v. NLRB,__ U.S.___ ,
114 S. Ct. 843 (1994), in which the petitioner contended that 
the "after-acquired evidence" rule established in cases arising 
under Title VII should curb the remedial powers of the 
NLRB.

1 The parties’ written consents to the filing of this brief are being filed 
today with the Clerk of the Court.



The Lawyers’ Committee is interested in this case 
because the lower courts’ misapplication of the after- 
acquired evidence rule is substantially harming the 
enforcement of Title VII as well as the ADEA, and is 
materially reducing the incentive of employers to eliminate 
discrimination.

The American Civil Liberties Union ("ACLU") is a 
nationwide, nonprofit, nonpartisan organization with nearly 
300,000 members dedicated to preserving and enhancing the 
civil rights and civil liberties embodied in the Constitution 
and civil rights laws of this country. In particular, the ACLU 
has long been involved in the effort to eliminate racial 
discrimination from our society. The Women’s Rights 
Project of the ACLU Foundation was established to work 
toward the elimination of gender-based discrimination under 
law. In pursuit of that goal, the ACLU has represented 
parties and participated as amicus curiae in numerous anti- 
discrimination cases before the Court, including, during the 
last ten years, International Union, UA W v. Johnson Controls, 
Inc., 499 U.S. 187 (1991) and EEOC v. Arabian American Oil 
Co., 499 U.S. 244 (1991).

The American Association of Retired Persons 
("AARP") is a nonprofit membership organization of persons 
age 50 and older that is dedicated to addressing the needs 
and interests of older Americans. More than one-third of 
AARP’s thirty-three million members are employed, most of 
whom are protected by the ADEA and Title VII of the Civil 
Rights Act of 1964. One of AARP’s primary objectives is to 
strive to achieve dignity and equality in the workplace 
through positive attitudes, practices, and policies towards 
work and retirement. In pursuit of this objective, AARP has 
participated as amicus curiae in numerous discrimination 
cases before this Court and the federal courts of appeals, 
and filed an amicus brief in support of the grant of certiorari 
in this case.

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SUMMARY OF ARGUMENT

The question presented in this case is whether Congress 
intended the courts to provide a remedy for unlawful 
employment discrimination visited on employees who would 
not have been hired, or who would have been fired, for some 
legitimate reason unknown to the employer when it 
committed its discriminatory act but learned in time to be 
offered as a defense in the employee’s suit. In the typical 
case the subsequently learned legitimate reason (or "after- 
acquired evidence") is that the employee obtained his or her 
job through some kind of deceit or, as here, has engaged in 
on-the-job misconduct warranting dismissal.2 The role 
Congress intended after-acquired evidence to play in these 
cases must be found in the language and purposes of the 
ADEA. The court below, however, without mentioning 
either the text or any perceived policy of the Act, denied all 
relief on the theoiy that respondent’s violation of the Act 
was not the legal cause of petitioner’s injury.

The lower court’s ruling springs from the Tenth 
Circuit’s decision in Summers v. State Farm Mut. Auto. Ins. 
Co., 864 F.2d 700, 708 (10th Cir. 1988).3 There the full 
extent of an employee’s falsification of company records 
came to light only after he filed an ADEA and Title VII suit 
against his employer for dismissing him on the basis of 
religion and age. The Tenth Circuit wrote that, although the 
previously unknown falsifications "could not have been a

-3  -

2 See Rebecca H. White & Robert D. Brussack, The Proper Role o f After- 
Acquired Evidence in Employment Discrimination Litigation, 35 B.C. L. 
Rev. 49, 50 nn.3-4, 57 & n.27 (1993) (collecting cases).

3 The Sixth Circuit adopted Summers in Johnson v. Honeywell Info. Sys., 
Inc. 955 F.2d 409, 415 (6th Cir. 1992), and followed it in Milligan-Jensen 
v. Michigan Technological Univ., 975 F.2d 302, 304 (6th Cir. 1992), cert, 
dismissed, 114 S.Ct. 22 (1993), and in the decision below. Pet. App. 5a- 
7a.



- 4 -

‘cause’ or ‘reason’ for [plaintiffs] discharge," it would be 
"utterly unrealistic" to ignore them and they should be 
"considered in determining what relief, or remedy, is 
available to [plaintiff]." 864 F.2d at 704, 708. The Tenth 
Circuit did not, however, undertake that consideration in 
light of the text or purposes of the fair employment laws. 
Instead it cited this Court’s decision in Ml Healthy City 
School District Board of Education v. Doyle, 429 U.S. 274 
(1977), for the proposition that, if a worker who had 
engaged in so-called resume fraud would not have been 
hired (or, in the case of on-the-job misconduct, would have 
been fired) had the true facts been known, then he or she 
suffers no legal injury from being discharged for 
discriminatory reasons.

The Tenth Circuit misread ML Healthy. That decision 
established that, when an employer bases an employment 
decision on both legitimate and illegitimate reasons, it can 
avoid liability if it can prove that it would have made the 
same decision based on the legitimate reason alone. As the 
Court made clear in Price Waterhouse v. Hopkins, 490 U.S. 
228, 252 (1989), however, the proffered legitimate reason 
must have actually motivated the employer at the time it 
took the disputed action.

In this case, as in all after-acquired evidence cases, the 
employer by definition was unaware of, and thus could not 
have been motivated by, the after-acquired legitimate reason 
at the time it committed its discriminatory acts. Hence the 
forbidden conduct alleged in the complaint and assumed by 
the courts below -  the denial of raises, harassment, and 
ultimate discharge of petitioner because of her age -- caused 
petitioner to suffer precisely the type of injury the Act was 
designed to redress: the deprivation of wage earning 
opportunities because of discrimination.



Accordingly, as the Eleventh Circuit recognized in 
Wallace v. Dunn Constr. Co., 968 F.2d 1174 (11th Cir. 1992), 
the question the court below should have addressed is 
whether, despite the existence of a violation, Congress meant 
for victims of employment discrimination to be denied all 
relief automatically because of their own misconduct. The 
Eleventh Circuit correctly ruled that Congress could not have 
intended that result because, as a complete bar to relief, the 
after-acquired evidence rule hinders rather than advances the 
deterrent and compensatory purposes of the fair employment 
laws by allowing intentional discrimination to go without 
sanction, leaving victims worse off than if no violation had 
occurred, creating an inducement for employers to engage in 
reprehensible employment practices, and discouraging 
discrimination victims from enforcing their rights.

Our view is reinforced by many decisions, including Still 
v. Norfolk & W Ry., 368 U.S. 35 (1961), refusing to recognize 
after-acquired evidence of employee misconduct as a bar to 
all remedies under other statutes authorizing employment- 
related relief, and by Bateman Eichler, Hill Richards, Inc. v. 
Berner, 472 U.S. 299 (1985), and Perma Life Mufflers, Inc. v. 
International Parts Corp., 392 U.S. 134 (1968), refusing to 
recognize common law fault-based defenses to violations of 
federal statutes Congress intended would be enforced by 
private actions.

Although after-acquired evidence cannot bar all relief, 
the proper application of the remedial principles embodied 
in the fair employment laws suggests that it may limit the 
availability of make-whole relief in particular cases. The 
victims of a discriminatory employment decision are not 
entitled to relief beyond the point when the same decision 
would have been made for nondiscriminatory reasons. 
Accordingly, after-acquired evidence of misconduct may 
serve in particular cases to terminate backpay and certain 
compensatory damages sooner than would otherwise be the

- 5 -



- 6 -

case, and to bar reinstatement and front pay entirely. It 
should not, however, affect the availability of punitive 
damages, which are awarded solely on the basis of the 
employer’s understanding of the unlawfulness of his own 
conduct.

ARGUMENT

I. THE LOWER COURT ERRED IN RULING THAT 
PETITIONER WAS NOT INJURED BY THE VIOLATION OF 

HER ADEA RIGHTS

Section 4(a) of the ADEA, 29 U.S.G. § 623(a), together 
with § 703(a) of Title VII, 42 U.S.C. § 2000e-(2)(a), make it 
unlawful for an employer —

to fail or refuse to hire or to discharge any 
individual or otherwise discriminate against any 
individual with respect to his compensation, 
terms, conditions, or privileges of employment, 
because of such individual’s

age, race, religion, sex, or national origin. (Emphasis 
added).4 As the words "because o f  plainly indicate, the 
critical inquiry at the liability phase of an individual disparate 
treatment case "is the reason for a particular employment 
decision." Cooper v. Federal Reserve Bank, 467 U.S. 867, 
8765 (1984). That presents a question of historical fact, 
requiring a determination of "what the state of a man’s mind 
at a particular time is." United States Postal Serv. Bd. of 
Governors v. Aikens, 460 U.S. 711, 716 (1983) (internal 
quotation marks and citation omitted). If the employment

4 As a rale, interpretations of Title VII apply with equal force to the 
ADEA, "for the substantive provisions of the ADEA ‘were derived in 
haec verba from Title VII.’" Trans World Airlines, Inc. v. Thurston, 469 
U.S. I l l ,  121 (1985) (quotingLorillard v. Pons, 434 U.S. 575,584 (1978)).



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decision at issue was made "because of' a prohibited factor, 
the statute has been violated, for "liability depends on 
whether the protected trait (under the ADEA, age) actually 
motivated the employer’s decision." Hazen Paper Co. v. 
Biggins, 113 S. Ct. 1701, 1706 (1993) (emphasis added).

Since by definition after-acquired evidence of 
misconduct is unknown to the employer at the time of the 
challenged employment decision, that evidence cannot 
possibly have been the reason for the decision. Hence it 
cannot bear on whether the employer has committed an 
unlawful employment practice. Indeed, none of the courts 
that has denied all relief on the basis of such evidence, 
including the courts below, appears to take a contrary view.5

Rather, these courts hold that after-acquired evidence 
mandates the denial of all relief notwithstanding the 
existence of a statutory violation on the theory that the 
violation was not the legal cause of the employee’s injuries. 
In Milligan-Jensen, for example, the Sixth Circuit "regarded] 
the problem as one of causation" and adopted the view that, 
"if the plaintiff would not have been hired, or would have 
been fired, if the employer had known of the falsification [on 
her job application], the plaintiff suffered no legal damage by 
being fired." 975 F.2d at 304-5. And in the instant case the 
Sixth Circuit wrote that, "because it was undisputed that

5 The courts below ruled as they did on the assumption that petitioner 
was "subjected to age discrimination." Pet. App. 13a, 3a. See also 
Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302, 305 (6th 
Cir. 1992) (whether plaintiff was discriminated against was "irrelevant"); 
Summers v. State Farm Mut. Auto. Inc. Co., 864 F.2d 700, 708 (10th Cir. 
1988) ("[WJhile such after-acquired evidence cannot be said to have been 
a ‘cause’ for [plaintiffs] discharge in 1982, it is relevant to [his] claim of 
‘injury,’ and does itself preclude the grant of any present relief or 
remedy."); Washington v. Lake County, III., 969 F.2d 250, 255 (7th Cir. 
1992) ("[The defendant] allows us to assume that it discriminated against 
[plaintiff) because of his race.").



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[petitioner] was guilty of misconduct, prior to her discharge, 
that would, if known by [respondent], have caused her 
discharge * * * [petitioner] did not suffer injury from the 
claimed violation" of her ADEA rights. Pet. App. 3a. By 
this the court presumably meant that, because petitioner 
would have been discharged lawfully had her misconduct 
been known, the unlawful discharge was not the legal cause 
of her injuries.

The lower court’s causation theory was first articulated 
by the Tenth Circuit in Summers, which mistakenly found it 
warranted by this Court’s decision in Mt. Healthy City School 
District Board of Education v. Doyle, 429 U.S. 274 (1977).6 
In Mt. Healthy the Court held that an employer who bases an 
employment decision on a mixture of legitimate and 
illegitimate motives can avoid liability by showing "that it 
would have reached the same decision" based on the 
legitimate reasons alone. 429 U.S. at 287. In Price 
Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court 
adopted the same test of liability in mixed-motive cases 
arising under Title VII, but in so doing firmly rejected the 
idea that an employer can prevail by offering a legitimate 
reason for its decision that it did not discover until later. As 
Justice Brennan explained for the plurality:

An employer may not * * * prevail in a mixed- 
motive case by offering a legitimate and sufficient 
reason for its decision if that reason did not 
motivate it at the time of the decision. * * * The 
very premise of a mixed motive case is that a 
legitimate reason was present * * *.

Id. at 252. See also id. at 260-61 (White, J., concurring in 
the judgment); id. at 266-67 (O’Connor, J., concurring in the

6 See Summers, 864 F.2d at 705-06, 707 n.3 (describing Mt. Healthy as 
"the linchpin case" in this area).



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judgment).

Accordingly, mixed-motive cases are no help to 
employers in after-acquired evidence cases, in which it is 
always undisputed that the legitimate reason offered for the 
employer’s action was not known to the employer at the time 
of, and hence could not actually have motivated, that action. 
It follows that, in this case, the after-acquired legitimate 
reason for petitioner’s discharge cannot alter the conclusion 
that age discrimination caused her to lose the wages she 
would have earned in the absence of respondent’s violation 
of the Act. The loss of those wages is precisely the kind of 
injury that the fair employment laws were designed to 
redress.

Apart from its reliance on Summers, the lower court 
offered no explanation for its unorthodox theory of 
causation. In particular, it made no attempt to explain how 
its concept of causation would promote or even be consistent 
with the purposes of the ADEA. The court’s aim was not to 
implement the congressional directive that the employee be 
made no worse off as a result of discrimination, see 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975) 
(quoting 118 Cong. Rec. 7168 (1972); cf. Mt. Healthy, 429 
U.S. at 285-86, but rather to apply the general equitable 
principle that a plaintiff be made no better off as a result of 
his or her own misconduct. In the end its conclusion 
reflected not so much a rule of causation as a policy decision 
preferring one wrongdoer over another.7

7 Strictly speaking, the lower court’s causation theory would relieve 
employers of liability whenever any legitimate reason for firing or not 
hiring the employee, including reasons having nothing to do with 
employee misconduct, surfaced after the employer’s discriminatory act - 
- such as the discoveiy that the employer had mistakenly given the 
employee a passing grade on the job application test, or that over time, 
unbeknownst to all, the employee’s eyesight had deteriorated below 
standards required by the job. As petitioner demonstrates in her brief.



- 10 -

Our quarrel with the lower court’s approach is not that 
it gives weight to the employee’s misconduct, but that it gives 
it exclusive weight. Instead of treating the misconduct as a 
factor to be considered in shaping an equitable remedy 
consistent with the statutory purposes, it treats it as a basis 
for denying causation and therefore liability. That approach 
disregards altogether that discriminatory employment actions 
have occurred which caused, in any ordinary sense, economic 
loss to the employee ~ the veiy situation Congress sought to 
redress. The better approach would have been to 
acknowledge that the employer committed violations that 
ordinarily would call for complete relief and then consider 
whether Congress intended a different result on account of 
the after-acquired evidence of employee misconduct. We 
turn now to that question.

II. CONGRESS DID NOT INTEND FOR 
AFTER-ACQUIRED EVIDENCE OF EMPLOYEE 

MISCONDUCT TO DENY ALL RELIEF FOR 
VIOLATIONS OF THE FAIR EMPLOYMENT LAWS

A. The After-Acquired Evidence Rule Is Inconsistent With 
The Text of The Fair Employment Laws

The lower court’s ruling effectively excludes numerous 
employees from the coverage of the fair employment laws. 
It deems these workers incapable of suffering injury on 
account of unlawful discrimination regardless of the nature 
of the discrimination or its consequences for the workers and 
for society. In this case, for example, the court held that, 
because petitioner copied confidential records, she did not 
suffer a redressable injury even assuming the truth of her

the limitless sweep of that rule of causation would eviscerate the fair 
employment laws and we do not read the Sixth Circuit to have adopted 
it. Rather, along with other lower courts, the Sixth Circuit’s rule seems 
rooted in notions of morality as well as causation, and hence restricted 
to cases of after-acquired evidence of employee misconduct.



-11 -

allegations that respondent denied her raises, harassed her, 
and ultimately dismissed her on the basis of age.

Nothing in the language of the fair employment laws 
suggests that Congress meant to exclude from their 
protection workers who have obtained their jobs through 
some kind of deceit or retained them despite having engaged 
in some form of misconduct unknown to the employer. The 
liability provisions of those statutes make it unlawful to 
discriminate against "any individual" on the basis of 
prohibited factors. This Court has given these words their 
ordinary, everyday meaning, holding that Title VII makes no 
"exception for any group of particular employees." 
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 
(1976).

The remedial provisions of the fair employment laws 
likewise contain no suggestion that Congress meant to deny 
a remedy to workers who conceal disqualifying 
characteristics. Once a violation of the Act is established, 
"[ajmounts owing * * * as a result," such as back wages and 
benefits, are to be treated as "unpaid minimum wages or 
unpaid overtime compensation" under the Fair Labor 
Standards Act ("FLSA"). 29 U.S.C. § 626(b). If the
violation is willful, the plaintiff is entitled to an additional 
equal amount as liquidated damages. Id., incorporating by 
reference 29 U.S.C. § 216(b). In addition, ADEA courts are 
authorized to

grant such legal or equitable relief as may be 
appropriate to effectuate the purposes of this 
chapter, including without limitation judgments 
compelling employment, reinstatement or 
promotion, or enforcing the liability for amounts



- 12 -

deemed to be unpaid minimum wages or unpaid 
overtime compensation under this section. Id.

Although this language accords district courts a 
measure of discretion, Congress granted that discretion "to 
allow the most complete achievement of the objectives of 
[the statute] that is attainable under the facts and 
circumstances of the particular case." Franks v. Bowman 
Transp. Co., 424 U.S. 747, 770-71 (1976) (Title VII). Hence 
in fashioning a remedy "a court has not merely the power 
but the duty to render a decree which will so far as possible 
eliminate the discriminatory effects of the past as well as bar 
like discrimination in the future." Ford Motor Co. v. EEOC, 
458 U.S. 219, 233 (1982) (internal quotations omitted) (Title 
VII); Albemarle Paper, 422 U.S. at 421 (discretionary power 
to award backpay granted "to make possible the fashioning 
of the most complete relief possible")(intemal quotes and 
brackets omitted) (Title VII).

B. The After-Acquired Evidence Rule Defeats the 
Deterrent and Compensatory Purposes of the Fair 
Employment Laws

The ultimate objective of both the ADEA and Title 
VII is the eradication of discrimination in the workplace. 
Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979) 
(ADEA); Rodriguez v. Taylor, 569 F.2d 1231, 1236 (3d Cir. 
1977) (ADEA); see also Albemarle Paper, 422 U.S. at 415. 
Both statutes seek to achieve that goal through policies of 
deterrence and restoration.8 Make-whole relief (such as 
backpay) is essential to both policies. As this Court observed *

* See Albemarle Paper Co., 422 U.S. at 417; International Bhd. of 
Teamsters v. United States, 431 U.S. 324, 364 (1977) (Title VII); Gibson 
v. Mohawk Rubber Co., 695 F.2d 1093,1097 (8th Cir. 1982) (ADEA seeks 
"to make persons whole for injuries suffered as a result of unlawful 
employment discrimination").



- 13 -

in Albemarle Paper, "[i]t is the reasonably certain prospect of 
a backpay award that ’provide[s] the spur or catalyst which 
causes employers and unions to self-examine and to self- 
evaluate their employment practices and to endeavor to 
eliminate, so far as possible, the last vestiges’" of their 
discriminatory practices. 422 U.S. at 418-419 (citation 
omitted). And in Ford Motor Co. this Court said that forcing 
an employer who has broken the law to pay the wages and 
benefits lost by the victim of his discrimination gives him a 
powerful incentive to avoid future violations, for "paying 
backpay damages is like paying an extra worker who never 
came to work." 458 U.S. at 229. These decisions recognize 
that the deterrent and make-whole purposes of the fair 
employment laws are mutually reinforcing, and that 
compensating victims of discrimination is critical to both, "for 
requiring payment of wrongfully withheld wages deters 
further wrongdoing at the same time that their restitution to 
the victim helps make him whole." Franks, 424 U.S. at 786 
(Powell, J., concurring and dissenting).

The rule adopted by the court below, insulating lawless 
employers from the Act’s remedial scheme, hinders rather 
than advances the restorative and deterrent policies of the 
ADEA and Title VII. The compensation-denying result of 
the rule is most immediately obvious, but its adverse effect 
on deterrence is no less severe. As the Eleventh Circuit 
observed in Wallacev. Dunn Constr. Co., 968 F.2d 1174,1180 
(11th Cir. 1992), the after-acquired evidence rule

does not encourage employers to eliminate 
discrimination. Rather, it invites employers to 
establish ludicrously low thresholds for 
‘legitimate’ termination and to devote fewer 
resources to preventing discrimination because 
[the rule] gives them the option to escape all 
liability by rummaging through an unlawfully- 
discharged employee’s background for flaws and



- 14 -

then manufacturing a ‘legitimate’ reason for the 
discharge that fits the flaws in the employee’s 
background.

The concerns expressed by the Wallace court are not 
fanciful. Employers, human resource professionals, and their 
attorneys are by now fully informed of the potential for the 
use of after-acquired evidence to avoid liability for 
discrimination.9 Moreover, employers have reason to 
believe that an intensive investigation of an ex-employee’s 
job application may well reveal some misstatement of fact, 
even in the case of employees who have performed 
satisfactorily since their hire.10

9 See, e g., Jonathan Groner, New Defense for Bias Suits: Attack, Fulton 
County Daily Report [for local attorneys], Mar. 12, 1993, at 1 (The 
doctrine of after-acquired evidence "permits [an employer] to trump 
discrimination charges by using dirt about an employee dug up after his 
termination"); George D. Mesritz, "After-Acquired" Evidence o f Pre- 
Employment Misrepresentations: An Effective Defense Against Wrongful 
Discharge Claims, 18 Employee Rel. LJ. 215, 224 (1992) (instructing 
employers to subpoena the ex-employee’s physicians and mental health 
care professionals for evidence of illicit drug use, and to contact courts 
located where the employee has resided); David A. Maddux & Douglas 
A. Barritt, Employees ’Lies Can Backfire: Misconduct May Bar Employment 
Suits, Nat’l LJ., May 10, 1993, at 25, 29 ("[T]he employer * * * should 
leave no stone unturned in trying to identify any misrepresentations or 
misconduct by the employee."); Morley Witus, Defense of Wrongful 
Discharge Suits Based on an Employee’s Misrepresentations, 69 Mich. BJ. 
50, 51 (1990) ("In defending discrimination and retaliation claims, again 
the focus should not be on the employer’s motive for discharging the 
employee.").

10 See, e.g.,Many Falsify Credentials, Qualifications, Atlanta Constitution, 
May 11, 1992, at B5 ("resume fraud is rampant among job seekers"); 
Kenneth Labich, The New Crisis in Business Ethics, Fortune, April 20, 
1992, at 167, 176 (surveys of Americans between 18 and 30 years old 
show that "between 12% and 24% say they included false information on 
their resumes"); Dennis Kelly, Lies Part o f  Students’ Lives, USA Today, 
Nov. 13, 1992, at 1 (33% of high school and college students surveyed



- 15 -

The lower court’s rule also impedes the deterrent aims 
of the fair employment laws by discouraging actions by 
private litigants, whom Congress has cast in the role of 
private attorneys general.11 The after-acquired evidence 
rule invites employers to conduct a wide-ranging and 
potentially humiliating investigation into the personal and 
professional background of every claimant. The inevitable 
result will be that employees who would otherwise challenge 
unlawful employment practices may tolerate them instead. 
That is especially true of employees who are aware of a 
blemish on their records that could surface during discovery, 
but even employees with nothing to hide might reasonably

indicated that they are willing to he on a resume); Steve Brunsman, 
Resume Fraud, Lying Not at All Uncommon, Houston Post, Sept. 26,1992, 
at E2; Joan E. Rigdon, Deceptive Resumes Can Be Door-Openers But Can 
Become an Employee’s Undoing, Wall St. J., June 17, 1992, at B l; Dale 
Crider, Resume Fraud Complicates Firing Claims, Nat’l L J., Dec. 7, 1992, 
at 17 ("In today’s employment market, resume fraud is an increasingly 
serious problem. * * * One in 10 employers reportedly has discovered 
applicants lying on resumes, and a close examination undoubtedly would 
uncover many more instances of applicants misrepresenting their 
qualifications.").

11 In Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974), the Court 
said that "the private right of action remains an essential means of 
obtaining judicial enforcement of Title VII” and "the private litigant not 
only redresses his own injury but also vindicates the important 
congressional policy against discriminatory employment practices." The 
same is true under the ADEA. Rodrigue: v. Taylor, 569 F.2d at 1245 
(granting attorney’s fees to ADEA plaintiff and noting that 
"congressionally approved awards are designed to encourage private 
enforcement of individual rights and to deter socially harmful conduct").

The Director of the Administrative Office of the U.S. Courts has 
reported that a total o f 10,771 private fair employment lawsuits were filed 
in FY 1992, compared with only 440 filed by government enforcement 
agencies. Annual Report of the Director of the Administrative Office of 
the United States Courts, Table C2, Appendix I, at 179 (Sept. 30, 1992).



- 16 -

decide to abide unlawful practices rather than subject 
themselves to intrusive personal investigations. The end 
result will harm not only the employees in question but also 
their colleagues in the workplace, who benefit each time an 
employee vindicates the public policy against employment 
discrimination.

Finally, the rule adopted below, legitimatizing the 
employer’s resort to discovery into the employee’s 
background, will further snarl the litigation process and shift 
the focus from issues important under the fair employment 
laws to collateral matters. This Court has already deplored 
the slow pace of Title VII lawsuits, in which delays "are now 
commonplace, forcing the victims of discrimination to suffer 
years of underemployment or unemployment before they can 
obtain a court order awarding them the jobs unlawfully 
denied them." Ford Motor Co., 458 U.S. at 228. The court 
of appeals’ rule will make matters worse. Both prospective 
plaintiffs and their attorneys, who frequently handle 
discrimination claims on a contingency basis, will be 
discouraged from running the litigation gantlet, and as 
enforcement efforts are weakened so is the overall deterrent 
force of the Act. The adverse impact on deterrence is bound 
to increase as more violations of the Act go unpunished, and 
the proliferation of cases in which employers offer after- 
acquired evidence to avoid paying for their discriminatory 
actions shows that the court of appeals’ rule may in fact 
immunize outlaw employers in a significant number of cases.

In sum, the after-acquired evidence rule finds no 
support in either the text or the policies of the fair 
employment laws. It wrongly insulates discriminatory 
employers from responsibility and thereby diminishes their 
"incentive to shun practices of dubious legality,” Albemarle 
Paper, 422 U.S. at 417; it leaves victims of intentional 
discrimination uncompensated; it will chill private 
enforcement actions; it will encourage reprehensible conduct



- 17 -

by employers; and it will contribute to litigation complexity 
and delay. By contrast, what can be said on behalf of the 
after-acquired evidence rule -- that it punishes employees 
who have gained their jobs through deceit or retained them 
despite undiscovered on-the-job misconduct -- is irrelevant to 
the ADEA and Title VII. Those laws were not enacted to 
adjust employer-employee relationships in accord with all of 
the rights and duties that may flow between them. Cf St.
Mary’s Honor Center v. Hicks, 509 U.S.__ , __ , 113 S. Ct.
2742, 2754 (1993) ('Title VII is not a cause of action for 
peijury; we have other civil and criminal remedies for that.").

C. The After-Acquired Evidence Rule Has Been Rejected
Under Other Federal Statutory Schemes

Two lines of decisions, one dealing particularly with 
laws that require employers to compensate workers for 
employment-related injuries and the other broadly defining 
the role of fault-based defenses to federal statutory causes of 
action, have concluded that achievement of Congress’s will 
takes priority over competing policies based on the plaintiffs 
misconduct.

1. Employment-related statutes. The after-acquired 
evidence of misconduct issue has arisen under a variety of 
federal statutes governing employer-employee relations, and 
over the years the courts and agencies responsible for 
implementing those statutes have devised rules for handling 
that issue in light of the statutory policies at stake. The 
general rule to have emerged is that after-acquired evidence 
cannot bar a claim altogether but may limit the availability 
of particular forms of relief.

In Still v. Norfolk & W. Ry., 368 U.S. 35 (1961), this 
Court held that a railroad cannot escape its obligation under 
the Federal Employers’ Liability Act to pay damages for 
personal injuries negligently inflicted upon a worker by



- 18 -

proving that the injured worker had obtained his job by 
making material misrepresentations on which the railroad 
relied in hiring him. The Court thereby effectively overruled 
Minneapolis, St P. & S. Ste. M. Ry. v. Rock, 279 U.S. 410 
(1929), which had denied such relief on public policy grounds 
to an injured worker who obtained employment through 
means that struck the Court as particularly outrageous.12 
The Court wrote in Still that "considerations of public policy 
of the general kind relied upon by the Court in Rock cannot 
be permitted to encroach further upon the special policy 
expressed by Congress in the Act," which is that workers be 
compensated for their injuries. Id. at 44-45. Hence, "the 
status of employees who become such through other kinds of 
fraud * * * must be recognized for purposes of suits under 
the Act." Id. at 45. The Court noted, however, that 
application fraud might serve to limit relief in appropriate 
cases, such as where the employee concealed evidence of a 
pre-existing injury for which he later sought compensation 
from the railroad. Id. at 46 n.14.13

12 The plaintiff in Rock obtained his job after being rejected for health 
reasons by reapplying under a false name and enlisting a stand-in for the 
medical exam. Although Still did not overrule Rock in so many words, 
it held th at"Rock must be limited to its precise facts" and suggested that 
those facts "may never arise again." 368 U.S. at 44.

13 The lower federal courts have reached the same conclusion regarding 
after-acquired evidence of misconduct in cases arising under the Jones 
Act and the Longshoremen’s and Harbor Workers’ Compensation Act 
("LHWCA"). See Newport News Shipbuilding & Dry Dock Co. v. Hall, 61A 
F.2d 248, 252 (4th Cir. 1982) (holding that the "specific legislative policy 
favoring compensation of injured employees" embodied in the LHWCA 
"overrides the general considerations surrounding an allegedly fraudulent 
formation of the employment relationship"); O m ar\. Sea-Land Serv., Inc., 
813 F.2d 986, 990 (9th Cir. 1987) (Jones Act); Gypsum Carrier, Inc. v. 
Handelsman, 307 FJ2d 525, 530-31 (9th Cir. 1962) (same).



- 19 -

In Goldberg v. Bama Manufacturing Corp., 302 F.2d 152 
(5th Cir, 1962), decided under the FLSA, an employee 
discharged for having reported wage and hour violations was 
discovered to have engaged in serious job-related 
misconduct, including forgery of production slips, theft, and 
time clock abuses.14 The Department of Labor, charged 
with administering the statute, argued that reinstatement and 
backpay were nonetheless appropriate. The court viewed the 
case as presenting "a collision of two strong policies, one 
against condoning violations of the Act and the other against 
forcing an employer to keep unfit employees." Id. at 156. It 
reasoned that the congressional goal of eliminating violations 
would be frustrated by a rule mandating the denial of all 
relief, since ”[t]he purposes of the [FLSA] require that 
employees throughout the country feel confident that they 
may bring a complaint to the Department of Labor without 
being penalized by their employers," and denying all relief 
would necessarily leave other workers with the impression 
that the employer "discharged an employee in violation of 
the Act and the district court allowed the employer to get 
away with it scot free." Id. Yet the court also acknowledged 
"half a dozen reasons why [the plaintiff] should have been 
discharged." Id. at 154. It concluded that "the conflicting 
policies present in this case would best be balanced" by an 
award requiring reimbursement but denying reinstatement. 
Id. at 156.

The National Labor Relations Board has similarly 
concluded that the national labor policy is best served by a 
rule allowing after-acquired evidence of employee

14 The Goldberg decision is particularly significant because it was part of 
the body of case law interpreting the FLSA’s remedial provisions that 
existed when Congress was drafting the ADEA. This Court has acknowl­
edged that Congress was aware of those judicial interpretations and 
meant to incorporate them into the ADEA. LoriUard v. Pons, 434 U.S. 
at 580-81.



- 2 0 -

misconduct to limit relief but not bar it entirely. In Axelson, 
Inc., 285 N.L.R.B. 862 (1987), two strikers who were unlaw­
fully deprived of their jobs had previously engaged in strike 
misconduct which, if known by their employer, would have 
resulted in their lawful discharge. Seeking to "balance [its] 
responsibility to remedy unfair labor practices and [its] policy 
of discouraging strike misconduct," the Board denied rein­
statement but awarded backpay up until the date the em­
ployer acquired knowledge of the misconduct (and would 
legitimately have discharged the workers). Id. at 866 & n .ll. 
Similarly, in John Cuneo, Inc., 298 N.L.R.B. 856 (1990), the 
Board considered the case of a worker who would not have 
been hired but for a material falsification on his resume, but 
who, absent discrimination, would have remained employed 
until the falsification was discovered. Once again seeking to 
"balance [its] responsibility to remedy the [employer’s] unfair 
labor practice against the public interest in not condoning 
[the worker’s] falsification of his employment application," 
the Board denied reinstatement but ordered backpay up un­
til the date that the falsification was discovered. Id. at 856.

This Court’s recent ruling in ABF Freight System, Inc.
v. N LRB ,__ U .S.___ _, 114 S. Ct. 835 (1994), suggests that
it would uphold these Board decisions. There the Court 
upheld the Board’s grant of reinstatement and back pay 
relief to a union supporter who had been fired because of 
anti-union animus but who had lied to his employer and had 
perjured himself in the Board’s administrative proceedings. 
The Court rejected a rule barring all individual relief where 
employee misconduct or perjury had occurred, citing St. 
Mary’s Honor Ctr., 113 S.Ct. at 2754, as supporting the 
Board’s decision to rely on "‘other civil and criminal 
remedies’ for false testimony, rather than a categorical 
exception to the familiar remedy of reinstatement." 114 S. 
Ct. at 840.



- 21 -

The Court’s discussion of the policies at stake in that 
case applies equally to cases brought under the ADEA and 
Title VII.15 It ruled that the Board had not abused its 
discretion in awarding relief because (1) the Board was 
under no obligation to adopt a rigid rule foreclosing relief in 
all such cases; (2) it could not "fault the Board’s conclusion^ 
that [the employee’s misconduct] was ultimately irrelevant to 
whether antiunion animus actually motivated his discharge"; 
and (3) it could not fault the Board’s conclusion that 
"ordering effective relief in a case of this character promotes 
a vital public interest"; and (4) a rule denying all relief 
because of employee misconduct "might force the Board to 
divert its attention from its primaiy mission and devote 
unnecessary time and energy to resolving collateral disputes 
about credibility." Id.

Finally, the EEOC has determined that the national 
goal of equal employment opportunity would best be served 
by a rule that after-acquired evidence of misconduct cannot 
bar relief entirely but may limit the availability of particular 
remedies. Under the EEOC’s Revised Enforcement Guide, 
an employer may be shielded from an order of reinstatement 
and from backpay accruing after the discovery of the 
legitimate reason for discharge. The employer is still subject, 
however, to awards of backpay and compensatory damages 
covering the period of time up to the discovery of the 
misconduct, as well as punitive damages. EEOC: Revised 
Enforcement Guide on Recent Developments in Disparate

13 Albemarle Paper held that Title VIPs "backpay provision was expressly 
modeled on the backpay provisions of the National Labor Relations Act" 
and that Congress intended the courts to follow the Board’s practices in 
making backpay awards. 422 U.S. at 419-20 and 422 N.16.



- 2 2  -

Treatment Theory, Fair Empl. Prac. Man. (BNA) 405:6915, 
6926-27 (1992) ("EEOC Revised Enforcement Guide").

2. Common-law fault-based defenses. The second line 
of relevant cases includes Perma Life Mufflers, Inc. v. 
International Parts Corp., 392 U.S. 134, 138 (1968), in which 
the Court refused to apply the common law doctrine of in 
pari delicto as a defense to actions under the antitrust laws, 
overruling the circuit court’s holding that the plaintiffs were 
barred from recovery because they had participated in the 
very antitrust violations for which they sought redress. The 
Court noted that "[tjhere is nothing in the language of the 
antitrust acts which indicates that Congress wanted to make 
the common-law in pari delicto doctrine a defense to [private] 
actions" and that "the purposes of the antitrust laws are best 
served by insuring that the private action will be an ever­
present threat to deter anyone contemplating" a violation. 
Id. at 138, 139. In the end it did not matter that the 
plaintiffs "may be subject to some criticism for having taken 
any part in [defendants’] allegedly illegal scheme and for 
eagerly seeking" more profits, id. at 139-40, for the 
importance of private enforcement of the antitrust laws 
carried the day.

The Court reached the same result on similar reasoning 
under the securities laws in Bateman Eichler, Hill Richards, 
Inc. v. Berner, 472 U.S. 299, 307 (1985). It stressed the 
importance of private actions in the enforcement of those 
laws and noted that it has "emphasized ‘the 
inappropriateness of invoking broad common-law barriers to 
relief where a private suit serves important public purposes.’" 
Id. at 307 (quoting Perma Life). It held that denying the in 
pari delicto defense would best serve the purposes of the 
federal securities laws because barring private actions "would 
inexorably result in a number of alleged fraudulent practices 
going undetected by the authorities and unremedied." Id. at 
315.



- 23 -

Those decisions preclude the recognition of a fault- 
based defense here, for private enforcement actions under 
the ADEA and Title VII are essential to their enforcement. 
See note 12, supra. Moreover, if plaintiffs who have violated 
the very statutes they sue to enforce are not barred by their 
misconduct, then a fortiori plaintiffs who seek to vindicate 
federal statutes they have not violated cannot be turned away 
on supposed public policy grounds of punishing wrongdoers.

In sum, these two lines of decisions demonstrate that 
the proper approach to after-acquired misconduct evidence 
in discrimination cases is one that forthrightly seeks to 
accommodate the competing policy concerns. Where the 
policies expressed in a federal statute run up against 
countervailing public policies, the courts should fashion a 
remedy that "protects against the invasion of [federal] rights 
without commanding undesirable consequences not necessary 
to the assurance of those rights." Mt. Healthy, 429 U.S. at 
287. The lower courts’ theory of causation/legal injury 
frustrates this goal by forcing a choice between a complete 
remedy or no remedy at all. Faced with this artificial choice, 
it is small wonder that most courts have opted to leave the 
plaintiff empty-handed.

III. After-Acquired Evidence May Affect The Remedies 
Available In Particular Cases

We have shown that denying all relief to victims of 
unlawful discrimination on the basis of after-acquired 
evidence is inconsistent with the language and purposes of 
the fair employment laws. In this part we discuss the proper 
effect of after-acquired evidence on the four types of relief 
requested by petitioner in her complaint: (1) backpay for the 
wages and benefits she lost as a result of her wrongful 
dismissal and discriminatory denial of raises while she was 
employed; (2) reinstatement and front pay; (3) compensatory 
damages for the humiliation and embarrassment she suffered



- 2 4 -

as a result of age harassment, and (4) liquidated or punitive 
damages. We show that, although after-acquired evidence 
should never affect the availability of liquidated damages, in 
particular cases it may serve to terminate backpay and 
certain compensatory damages sooner than would otherwise 
be required and to preclude reinstatement and front pay 
entirely. Permitting after-acquired evidence to play a role 
in the formulation of a remedy is consistent with the 
statutory goal of placing discrimination victims, as near as 
may be, in the position they would have occupied had the 
discrimination not occurred. United States v. Burke, 112 S.Ct. 
1867, 1873 (1992) (Title VII); Albemarle Paper, 422 U.S. at 
418; Hawley v. Dresser Indus., Inc., 958 F.2d 720, 725 (6th 
Cir. 1992) (ADEA); Duffy v. Wheeling Pittsburgh Steel Corp., 
738 F.2d 1393, 1398 (3d Cir. 1984) (same). Such evidence 
may demonstrate that an unlawfully discharged worker who 
files a discrimination action would have been discharged 
lawfully prior to the date of final judgment in that action 
even in the absence of discrimination. Under these 
circumstances, reinstating the plaintiff and awarding full 
backpay would disserve the purposes of the fair employment 
laws by making the plaintiff better off than if no 
discrimination had occurred. See Wallace, 968 F.2d at 1182; 
cf. 42 U.S.C. § 2000e-(2)(j).

Allowing the use of after-acquired evidence to limit 
relief creates an obvious incentive for defendants to claim 
that any previously undisclosed resume falsification or 
workplace-rule infraction would have resulted in the 
plaintiffs dismissal had it been known. To guard against the 
possibility of abuse, a defendant should be required to prove 
its claim by objective evidence, such as a preexisting written 
policy stating that the conduct in question will result in 
immediate dismissal. See Welch v. Liberty Machine Works, 
1994 U.S. App. LEXIS 10028, at *8, 23 F.3d 1403 (8th Cir. 
Jan. 13, 1994) (reversing summary judgment for employer 
because "self-serving affidavit" did not meet the "substantial



- 25 -

burden of establishing that the policy predated the hiring and 
firing of the employee''); cf. EEOC Revised Enforcement 
Guide, supra, at 405:6925 (employer must offer "objective 
evidence" of a "legitimate reason for the action" in mixed 
motive cases).

In addition, the defendant should be required to prove 
that its policy mandating dismissal is actually applied on a 
nondiscriminatoiy basis to others who engage in the same or 
similar conduct. See Franks, 424 U.S. at 772-73 & n.32;16 
McDonnell Douglas v. Green, 411 U.S. 792, 804 (1973) 
(evidence that employer had retained other employees who 
engaged in same conduct is "especially relevant" to showing 
pretextual nature of employer’s stated reason for discharge). 
Finally, the court should bear in mind that proof that an 
employee would not have been hired is not proof that the 
employee would have been fired, for "[tjhere are many 
situations * * * in which an employer would not discharge an 
employee if it subsequently discovered resume fraud, 
although the employee would not have been hired absent 
that resume fraud." Bonger v. American Water Works, 789 F. 
Supp. 1102, 1106 (D. Colo. 1992). Accord Washington v. 
Lake County, III, 969 F.2d at 254.

With the foregoing in mind, we turn now to the 
different forms of relief requested by petitioner.

16 In Franks the Court held that an employer could avoid providing 
make-whole relief to applicants who were discrim inatorily denied 
consideration for line driver positions by showing that the individuals in 
question would not have been hired on the basis of "nondiscriminatory 
standards actually applied by Bowman to individuals who were in fact 
hired." 424 U.S. at 733 n.32 (emphasis added).



- 2 6 -

A. Backpay. A worker who has been discharged 
discriminatorily is normally entitled to backpay from the date 
of discharge to the date of final judgment. See Lorillard v. 
Pons, 434 U.S. at 584; Franks, 424 U.S. at 786 (Powell, J., 
concurring and dissenting); Anastasio v. Sobering Corp., 838 
F.2d 701,708 (3d Cir. 1988). However, "[cjonsistent with the 
ADEA’s purpose of recreating the circumstances that would 
have existed but for the illegal discrimination, aggrieved 
persons are not entitled to recover damages for the period 
beyond which they would have been terminated for a 
nondiscriminatory reason." Gibson, 695 F.2d at 1097. 
Accord Stacey v. Allied Stores Corp., 768 F.2d 402, 408 (D.C. 
Cir. 1985); Hill v. Spiegel, Inc., 708 F.2d 233, 238 (6th Cir. 
1983). Thus, for example, an employee is not entitled to 
backpay beyond the period when his or her job would have 
been eliminated because of plant closure, see Gibson, 695 
F.2d at 1097, or a company reorganization, see Bartek v. 
Urban Redevelop. Auth., 882 F.2d 739, 747 (3d Cir. 1989).

It follows that the victim of a discriminatory dismissal 
should not receive full backpay if the employer can prove 
that, even absent the discrimination, it would have 
discovered a legitimate reason for dismissal prior to the date 
of final judgment and would have dismissed the plaintiff on 
that basis alone. Back pay should be awarded, however, up 
until the point the legitimate reason would have been 
discovered. Since the employee would have remained 
employed up to that time but for the discrimination, a denial 
of back pay covering this period of time would leave the 
plaintiff worse off than if discrimination had not occurred. 
See Wallace, 968 F.2d at 1182.

Although an employer may well find it difficult to 
prove when evidence of employee misconduct would have 
been discovered absent the plaintiffs suit, employers seeking 
to limit backpay liability are often called upon to prove what 
would have happened to a worker had the employer not



- 2 7 -

discriminated. See, e.g., International Bhd. of Teamsters v. 
United States, 431 U.S. at 324, 359, 362 (1977); Gibson, 695 
F.2d at 1009. Where the employee’s misconduct was particu­
larly egregious or detrimental to the employer, a court may 
conclude that it would have been discovered in short order. 
Regardless of the difficulty of proof, however, "[t]he most 
elementaiy conceptions of justice and public policy require 
that the wrongdoer shall bear the risk of the uncertainty 
which his own wrong has created." Bigelow v. RKO Radio 
Pictures, Inc., 327 U.S. 251, 265 (1946).17 And the nature 
of an employee’s misconduct, even if particularly egregious, 
does not justify a departure from the make-whole principle 
of relief. As this Court has previously observed, even 
workers who have committed "a serious criminal offense 
against their employer" are entitled to the full protection of 
the fair employment laws. McDonald v. Santa Fe Trail 
Transp. Co., A ll U.S. 273, 281 (1976). See also McDonnell 
Douglas Corp. v. Green, 411 U.S. 792, 803-04 (1973).18

B. Reinstatement and Front Pay. Normally an 
order of reinstatement is required to make the prevailing 
plaintiff whole. See Franks, 424 U.S. at 779; Taylor v. 
Teletype Corp., 648 F.2d 1129, 1138 (8th Cir. 1981); Duke v. 
Uniroyal Inc., 928 F.2d 1413, 1423 (4th Cir. 1991). Unlike

17 For these reasons we disagree with the EEOC’s position that backpay 
should terminate on the date the misconduct was actually discovered, for 
that position may leave a worker worse off as a result of discrimination.

18 The Tenth Circuit in Summers hypothesized the situation in which, 
during the course of fair employment litigation, one purporting to be a 
doctor is unmasked as a fake. To our knowledge no case has presented 
such an extreme situation, but should such an unlikely case ever arise a 
court of equity may deal with it appropriately without violating the 
deterrent and make-whole purposes of the fair employment laws. Cf. 
Albemarle Paper, 422 U.S. at 424 (in particular cases which have been 
litigated in an unusual manner, backpay can be denied without 
implicating the purposes of backpay relief).



- 28 -

backpay, however, which "squares accounts of what may be 
a closed relationship," "[ojrders for reinstatement and hiring 
are of on-going consequence to both employee and employer 
and [thus] involve more than making a victim of 
discrimination whole for past injuries." Rodriguez, 569 F.2d 
at 1242 n.21. Accordingly, most courts have recognized that 
"notwithstanding the desirability of reinstatement, intervening 
historical circumstances can make it impossible or 
inappropriate." Duke v. Uniroyal Inc., 928 F.2d at 1423. See 
also, e.g., Houghton v. McDonnell Douglas Corp., 627 F.2d 
858 (8th Cir. 1980) (denying reinstatement because plaintiff 
was no longer physically fit for the position); Ginsberg v. 
Burlington Indus., Inc., 500 F. Supp. 696, 699 (S.D.N.Y. 1980) 
(appropriate to deny reinstatement where facts demonstrate 
a "‘lack of complete trust and confidence between plaintiff 
and defendant’").

The discovery of after-acquired evidence is an 
"intervening historical circumstance" that may make 
reinstatement inappropriate. First, if the employer proves 
that, even absent the discriminatory dismissal and ensuing 
litigation, it would have discovered the after-acquired 
evidence in short order and dismissed the plaintiff, 
reinstatement would in effect make the plaintiff better off 
than if no discrimination had occurred. Second, even 
without such proof, the discovery itself may nevertheless so 
damage the employment relationship that reinstatement 
would be unworkable. McKnight v. General Motors Corp., 
908 F.2d 101, 115 (7th Cir. 1990). In the latter case, 
however, an award of front pay might be appropriate to 
compensate for the lack of reinstatement. See Duke v. 
Uniroyal Inc., 928 F.2d at 1423; Carter v. Sedgwick County, 
Kan., 929 F.2d 1501,1505 (10th Cir. 1991); Floca v. Homcare 
Health Servs., Inc., 845 F.2d 108, 112 (5th Cir. 1988); cf. 
Burke, 112 S. Ct. at 1873 & n.9.



- 29 -

C. Compensatory Damages. Under the Civil Rights 
Act of 1991, prevailing plaintiffs in disparate treatment cases 
are entitled to compensatory damages for pain and suffering 
caused by employment discrimination. 42 U.S.C. § 1981a. 
This Court has never determined whether such damages are 
available under the ADEA, a question on which Franklin v.
Gwinnett County Public Schools, 503 U.S. __ , 112 S. Ct.
1028 (1992), may bear heavily. But the Court need not 
decide that issue to hold that after-acquired evidence should 
have no effect on the availability of compensatory damages 
where, as here, they are sought as a remedy for age-based 
harassment. The harms inflicted by discriminatory 
harassment are well-documented in the prior decisions of 
this Court. See Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986); Harris v. Forklift Sys., Inc., __U.S. ___, 114 S. Ct.
367 (1993). These harms are not diminished simply because 
an employer can show that it would have fired (or would not 
have hired) the victim had it known something of which it 
was unaware. Cf Still, supra. Where, however, 
compensatory damages are sought to offset harm resulting 
from unemployment, then, like backpay, they should not be 
awarded beyond the point at which the plaintiff would have 
been dismissed for legitimate reasons. See EEOC Revised 
Enforcement Guide, supra, at 405:6926 (after-acquired 
evidence may cut off compensatory damages covering losses 
arising after discovery of misconduct).

D. Liquidated Damages. Punitive damages are 
available under Title VII as amended by the Civil Rights Act 
of 1991 if the employer acts "with malice or with reckless 
indifference" to the employee’s rights, 42 U.S.C. § 1981a, and 
under the ADEA in the form of liquidated or double 
damages if the employer’s violation was "willful," 29 U.S.C. 
§ 626(b). See Trans World Airlines, Inc. v. Thurston, 469 U.S. 
I l l ,  125 (1985) (Congress intended ADEA’s liquidated 
damages to be punitive in nature). A violation is "willful" if 
the employer "‘knew or showed reckless disregard for the



- 30 -

matter of whether its conduct was prohibited by the ADEA.’" 
Id. at 128 (citation omitted).

After-acquired evidence should have no effect on the 
availability of liquidated or punitive damages under the fair 
employment laws. See EEOC Revised Enforcement Guide, 
supra, at 405:6927. Those remedies are awarded depending 
on the employer’s understanding of the lawfulness of its own 
conduct; information the employer did not acquire until after 
it acted can have no bearing on that issue. Moreover, 
because punitive damages are meant to deter rather than 
compensate, the employer’s conduct, not the employee’s, is 
the only relevant consideration.

CO NCLUSION

The judgment of the court of appeals should be
reversed.

Respectfully submitted,

Michael A. Cooper William F. Sheehan  
(Counsel o f  record)

William D. Weinreb 
Amy Horton 

Shea & Gardner 
1800 Massachusetts Ave., NW  
Washington, D.C. 20036 
(202) 828-2000

Co-Chair
Norman Redlich, Trustee 
Barbara J. Amwine 
Thomas J. Henderson 
Richard T. Seymour 
Sharon R. Vinick 

Lawyers’ Committee For
Civil Rights Under Law 
1450 G Street, N.W. 
Washington, D.C. 20005 
(202) 662-8600

Steven R. Shapiro 
H elen Hershkoff 
Sara L. Mandelbaum  

American Civil Liberties 
Union Foundation 
132 West 43 Street 
New York, N .Y . 10026 
(212) 944-9800

Cathy Ventrell-Monsees 
American Association of 
Retired Persons 
601 E Street, N.W. 
Washington, D.C. 20049 
(202) 434-2060

Counsel for A m ici Curiae