Evidence-gathering is one of the most critical parts of any employment discrimination lawsuit. In the normal course of litigation, wrongfully terminated employees may use discovery tools to obtain evidence to prove their case. However, sometimes—due to mistrust in an employer, lack of knowledge about the legal system, or uncertainty that they even want to file a lawsuit—wrongfully terminated employees take evidence-gathering into their own hands. This process, known as “self-help discovery,” can involve anything from emailing files from a work account to a personal account to breaking into a secure office to steal physical copies of sensitive documents.
Depending on what kind of evidence an employee has saved, to whom that evidence has been given, and what that employee had to do to save the evidence, the act of self-help discovery can violate company policy or even the law. And if an employer finds out during the course of litigation that an employee engaged in self-help discovery during employment, and that self-help discovery would have been considered fireable misconduct, an employee’s damages are cut off starting on the date the misconduct is discovered. McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995). To illustrate with an example, if an employee was discriminated against and ultimately fired because of his age in violation of the ADEA, but that employee was also secretly stealing money from his employer company, the employee’s damages are cut off on the day the company discovers that he was stealing. This concept is referred to as the “after-acquired evidence doctrine.” The law assumes the thieving employee would have been legitimately fired as soon as the company found out about the theft, so giving him damages for his loss of wages after that point—even if he experienced real discrimination—is disfavored. The after-acquired evidence doctrine does not eliminate the company’s liability for age discrimination or any other kind of discrimination. However, limiting damages with the after-acquired evidence doctrine can have a significant impact on the value of an anti-discrimination employment case.
What does it take for self-help discovery to sink a legitimate case via the after-acquired evidence doctrine? Different circuits take different approaches to answer this question. In the Ninth Circuit, courts use a balancing test to weigh “an employer’s interest in maintaining a harmonious and efficient workplace [against] the protections of the anti-discrimination laws,” O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 764 (9th Cir. 1996). In addition, where an employer claims an employee’s wrongdoing would have been independent grounds for termination, the employer has the burden of not only establishing that it could have fired the employee for the conduct, but that it “would in fact have done so.” 79 F.3d at 759. In other words: context matters. An employer has a better chance of cutting off damages using the after-acquired evidence doctrine where an employee had to break into a secure location to photocopy confidential files for sharing with competitors. That same employer has a much worse chance of cutting off damages where an employee has saved files to her home computer if it is common and permissible for employees to keep files of that kind on their home computers in the normal course of their employment.
Now that it is easier than ever for employees experiencing discrimination to gather digital evidence, the self-help discovery and after-acquired evidence doctrines are being applied in new contexts by courts across the United States. And as gender discrimination, sexual orientation discrimination, and race discrimination attorneys bring cases in locations from San Francisco to Nashville to New York City, the doctrines are sure to continue to intersect in new, interesting, and sometimes novel ways.