Quite often employers will discover information that may form an additional basis for justifying an adverse employment action, but how this after acquired evidence may be used is limited. Once an employer makes the decision to terminate, transfer or demote an employee, it is often too late to justify that decision via after acquired evidence. McKennon v. Nashville Banner Pub’s Co., 513 U.S. 352 (1995) and O’Neal v. City of New Albany, 293 F.3d 998 (7th Cir. 2002).
Often employers discover additional information based on an investigation conducted after an employee makes a claim of sexual harassment, discrimination and/or retailaition; but employers do not realize the limitation on the use of the after acquired evidence. Consulting an employment attorney prior to making the adverse employement decision to properly protect against a claim of sexual harassment, discrimination and/or retaliation can help avoid the limitation on use of the after acquired evidence.
Luckily, the employer may still be able to utilize the after acquired evidence to limit the remedies available to the employee. McKennon v. Nashville Banner Pub’s Co., 513 U.S. 352, 361-2, (1995). Therefore, implementing a good human resource policy to investigate before taking an adverse employment action can assist in litigation success and limiting an employer’s exposure for any sexual harassment, discrimination and/or retaliation that an employee claims.
We can assist employers in taking such preventative measures to limit their exposure under Title VII of the Civil Rights Act of 1964, the Americans with Disability Act, and the Age Discrimination in Employment Act.