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What is the after-acquired evidence defense?



In every employment discrimination lawsuit, the employee must use evidence to establish liability and damages in order to recover monetary relief. Only after the employee has established liability can the employee offer evidence to show that he has suffered damage as a result of the employer’s discrimination. There are different types of damages recoverable under each employment law. For example, pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”), an employee can recover back wages as well as wages for emotional distress. Pursuant to the Family Medical Leave Act (“FMLA”), an employee can recover liquidated damages, in addition to back wages. If an employer can establish that after terminating an employee, it discovered another reason which would have resulted in that employee’s immediate termination, then the employer may be able to limit that employee’s recovery of back wages.

Back Wages and Mitigation

In unlawful termination lawsuits, back wages are measured from the time of termination through when an employee finds subsequent employment earning more money or the end of the lawsuit, if the employee earns less than what he earned while working for the defendant. Back wages are the difference between what an employee earned while working for the defendant and what the employee earned after termination. An employee has a duty to mitigate his damages. In other words, an employee must find another job after he is terminated from the employer involved in the lawsuit. There are different rules governing mitigation, but it is important for an employee to actively seek subsequent employment after termination. If an employee seeks employment but cannot find suitable work, that employee is entitled to recover the full amount of wages that he earned prior to his termination. Alternatively, if an employee finds a job earning more money, then that employee’s damages are cut-off from the time he secured the subsequent employment.

After-Acquired Evidence

As mentioned above, an employer may be able to limit an employee’s recovery of damages if it can establish that it learned of another reason that it would have terminated the employee. The “after-acquired” reason supporting termination must have been so grave that it alone would have resulted in immediate termination. If the employer can establish that the discovery of evidence would have resulted in immediate termination, then the employee can only recover back wages from the time of termination to when the employer learned of the after-acquired evidence. If the employer cannot establish that the after-acquired evidence was so grave that it alone would have resulted in immediate termination, then the employee can fully recover his back wages.

If you feel your employment rights have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you.

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