Sometimes, after an employee has been discharged, a supervisor will discover that the employee broke additional rules. But even if what you discover would be enough to have justified discharge on its own, chances are a court won’t let you use the information in your defense.
After-acquired evidence isn’t admissible to show you would have fired the employee for reasons other than the one you used.
Recent case: Hui, who is of Chinese national origin and over age 50, taught Mandarin in New Rochelle for three years until she was terminated before earning tenure.
She sued, alleging age and national-origin discrimination. Her evidence included alleged statements from supervisors about the superiority of younger instructors and suggestions that Hui “belonged in Chinatown.”
After terminating Hui, managers discovered that she might have made misleading statements on her original job application, such as not disclosing a prior firing even though the application specifically asked about earlier. The school district moved to dismiss her lawsuit, arguing that falsifying an application was an independent reason for discharge and that it would have fired her for that reason alone had it known about the misstatement earlier.
The court said the employer couldn’t retroactively assign a new discharge reason based on after-the-fact information. (Altman v. New Rochelle Public School District, No. 13-CV-3253, SD NY, 2014)
Final note: Avoid these kinds of lawsuits in the first place by reminding bosses not to comment about age when comparing employees.