Law Office Of Michael G. O’Neill, The Types of Cases We Handle
You discover some incriminating documents on the job, what do you do?
This scenario arises with some frequency.   Here is a typical example.   You've complained to HR about your boss harassing you.   A few days later, you come across an email from your boss to a friend of his.   He's infuriated by your complaint and he says that he's going to fire you.

You know that your boss will erase this email and deny ever sending it.   Plus, it's on his Yahoo account, so the company will not have a copy of it anywhere.   You can easily copy the email and keep it to protect yourself in case you get fired.   Obviously you know that its against the law for your boss to retaliate against you for complaining about his harassment, so you're justified in making a copy of that email, right?

Not according to the Supreme Court.   In 1995, The Supreme Court endorsed something called the after acquired evidence doctrine.   (Doctrine just means a principle or rule of law.)   According to this principle, if the employer discovers evidence of employee wrongdoing, and if the employer can convince the jury that it would have fired the employee for such conduct, then the employer can escape some of the consequences of having discriminated against the employee.

Huh?    You might ask.   Isn't this like saying two wrongs make a right?

Well, there is some logic to the rule.   The logic is this: to recover damages for a wrongful termination, the employee has to prove that he or she would have continued working at the company.   Sometimes things happen post termination that make that a dubious proposition.   Sometimes the company closes an office, or goes out of business.   Sometimes the fired employee become disabled and unable to work.   In these cases, the company can say "hey, even if we hadn't fired you, you would have been out of a job by such and such date."   This is a fair point.

So the after acquired evidence rule picks up on this point.   The company in effect says "when we discovered that you took documents from the job, we would have fired you anyway. . .."

What's wrong with this logic?       Plenty.

First of all, it gives employers the right to "go after" victims of discrimination to find some evidence, however slight, of wrongdoing.   The employee's resume will be scrutinized for some inaccuracy, so that the company can claim that the employee would have been fired for "lying" on the job application.   The hard drive on the employee's computer will be examined by a forensic technician.   Every email ever written by the employee will be looked in the hope that some violation of the company's email policy.   They will look at the employee's internet browsing history.   Anything to muddy the waters and let them argue to the jury that the employee would have been fired anyway.

In reality, this is a form of officially sanctioned retaliation.   The company doesn't do these things for all its employees, only the one that has sued it for discrimination.   In fact, this is the real absurdity of the rule. But for the discrimination case, the company never would have discovered any of these things.   Isn't that reason enough to do away with the whole idiotic rule?  

Ok, I'm going to allow that the rule has its place, but only to a very limited extent.   I would say that if the company discovers some serious wrongdoing, that it would have discovered in the absence of the discrimination lawsuit, then fine, the defense is a fair one.   So, for example, if an audit reveals that the employee was stealing money, or an inventory shows that the employee was stealing merchandise, then I say go for it.  

Otherwise, I say the fact that the "wrongdoing" is discovered only as a result of the lawsuit shows that the company would not have fired the employee, because it never would have know about it.  

But that's not the world we live in.   I don't write the law, and we have to deal with the law as it is.   So does that mean that there's nothing you can do to protect yourself when you find that "smoking gun" evidence that will prove your discrimination case?   Nope, it doesn't mean that at all.   If you're already taken the documents, or fudged your resume, I can minimize the damage to your case.   If you're still at the job, I know what to do to make sure that the evidence is preserved, without risking any ill effect to your case.

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