An Ad Hoc Rationalization of Employer Wrongdoing: The Dangers of the After-Acquired Evidence Defense
This piece offers an across-the-board policy and doctrinal critique of the “after-acquired evidence” (AAE) defense. This defense allows employers to escape liability for workplace wrongs by uncovering previously unknown evidence of past employee misconduct. Such a defense violates the basic aspirations of our legal system, which include treating each litigant equally despite his or her past or character. The defense also poses a number of policy dangers, such as promoting invasive discovery, discouraging employee claims, creating unfair prejudice at trial, and disparately impacting underprivileged minorities. The defense has been justified on a number of contractual, equitable, and economic grounds, none of which withstands scrutiny. Past AAE scholarship has focused almost exclusively on federal discrimination law, with the important exception of one recent article by Professor Sachin Pandya. Building on Pandya’s article, this Comment articulates arguments against the AAE defense that apply to all employee claims.