After-acquired evidence is the plot twist of employment litigation. An employee files a wrongful termination claim. During discovery, the employer finds out something that would have led to termination anyway: resume fraud, undisclosed misconduct, theft. The original action may still have been unlawful, but the damages the employee can recover are often capped from the moment the employer would have fired them based on the newly found information. It doesn't get an employer off the hook, but it changes the economics of the dispute.
How the McKennon Rule Works The modern framework comes from the Supreme Court's 1995 decision in McKennon v. Nashville Banner Publishing Co. Christine McKennon was terminated in a reduction in force at age 62. During her age discrimination lawsuit, the employer learned she had copied confidential financial records. The court held two things: first, McKennon's firing was still potentially unlawful under the ADEA; second, her recovery could be limited because she would have been terminated for the misconduct anyway.
In practice, that means back pay is usually recoverable from the date of the unlawful termination to the date the after-acquired evidence would have led to termination. Reinstatement and front pay are typically off the table.
What Employers Have to Prove The McKennon standard is not permissive. Employers have to show two things: (1) the after-acquired evidence demonstrates misconduct serious enough to justify termination, and (2) the employer would in fact have terminated the employee on learning of it.
Courts look for documentation: consistent enforcement of the rule the employee broke, examples of other employees terminated for similar conduct, and written policies that put the rule in the employee handbook. A policy that exists on paper but is never enforced doesn't satisfy the standard. Cherry-picking a rule to justify an already-completed firing rarely works either.
Is Resume Fraud the Most Common Trigger? In practice, yes. Resume fraud (fabricated education, falsified employment history, misrepresented credentials) is the most frequently litigated category. Other triggers include undisclosed prior harassment , theft, and serious policy violations that surface during discovery.
When After-Acquired Evidence Does Not Help the Employer The doctrine has limits. It does not cure a discriminatory decision; it only limits damages. The employer remains liable for the underlying unlawful act. The EEOC can still seek injunctive relief, and courts can order attorney fees for the plaintiff. If the after-acquired evidence is marginal (a minor rule violation, stale misconduct, a policy the employer selectively enforces), courts often reject it.
The EEOC has also pushed back on employers that conduct pretextual post-hoc investigations specifically to find after-acquired evidence. Courts scrutinize the pattern: sudden investigations launched only after a claim is filed get more skeptical treatment.
What HR and Employee Relations Teams Should Document Now The doctrine rewards employers that maintain consistent enforcement records before any claim is filed. Three practices matter most. Keep comprehensive records of similar misconduct cases and their outcomes, so the employer can show a pattern of enforcement. Document policies clearly, especially rules on grievance procedures, confidentiality, and background verification. And handle post-termination investigations cleanly, with the same rigor as any pre-termination investigation.
For teams building after-acquired evidence discipline into their ER program, the playbook is simple. Run investigations under a consistent framework so the records are defensible later. Keep findings organized and searchable. When a former employee files a claim, the quality of your documentation determines how much the after-acquired evidence doctrine can actually help. AllVoices' investigations management tools give employee relations teams that record-keeping backbone without creating new compliance work.
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