Digging Up Dirt on Fired Worker Won’t Kill Bias Suit, Court Rules : Law: Justices are unanimous in decision on age discrimination case. Evidence of past firing offenses could limit damages, though.


Employers who are charged with illegal job bias cannot entirely shield themselves by searching out damaging evidence about the worker who filed the complaint, a unanimous Supreme Court ruled Monday.

However, a worker who lied on a resume, stole money or otherwise violated a company’s rules will be limited in how much can be gained in damages, the justices said.

In the last decade, some employers have fought job discrimination claims by undertaking a thorough investigation of the worker’s past. Studies have found, for example, that 30% of job applicants inflate their credentials or hide embarrassing facts about their past. Many others can be charged with inflating expense reports, insubordinate behavior or other serious violations of company rules.

Armed with this “after-acquired evidence,” management lawyers then marched into court insisting that a job bias claim be thrown out. But the Supreme Court called a halt to that practice Monday.


“We conclude that a violation of the (federal job discrimination laws) cannot be so altogether disregarded,” said Justice Anthony M. Kennedy for the court. These laws have “a common purpose: the elimination of discrimination in the workplace,” he added, and the “deterrence” value of the law would be destroyed if guilty employers could evade liability through these tactics.

However, the court does not want to reward guilty employees generously either.

If a company being sued turns up new evidence showing that a worker had committed a firing offense earlier, it need not rehire that worker. Further, it must pay damages for the illegal firing only to the day the new evidence came to light, the court said.

The ruling was a partial victory for a secretary at a Nashville newspaper who at age 62, after 39 years of service, was discharged. Christine McKennon filed suit contending that she was a victim of age discrimination.


She testified that she had seen what was coming and had photocopied confidential company documents which suggested, she said, that older workers were going to be dismissed.

But when lawyers for the newspaper heard about the copying 14 months after her dismissal, they announced that the offense would have justified her termination.

Based on that conclusion, a federal judge threw out her lawsuit and the U.S. Court of Appeals in Cincinnati agreed.

Reversing that judgment in McKennon vs. Nashville Banner, 93-1543, the high court said that the woman should be paid her salary for the 14 months between the time she was illegally discharged and the day the company learned about the photocopying. She also will have her lawyers’ fees paid.


Civil rights lawyers applauded the court for making clear that employers will be held liable for discrimination.

But business lawyers were pleased because the ruling also limits the damages.

Management lawyers, however, predicted that companies will continue to aggressively search out evidence about workers who sue because it could save them money.

Justice Kennedy said that judges may fine companies that needlessly pry into a worker’s background in a search for damaging information.


In another action, a sharply divided 5-4 decision opened the courthouse door slightly to Death Row inmates who can point to both “reliable new evidence” that proves they are innocent and a “constitutional error” in the handling of their case.

Undoubtedly, it will be the “extraordinary” and “extremely rare” instance where a state inmate facing the death penalty gets a new chance to prove his innocence in federal court, the justices said. However, “the quintessential miscarriage of justice is the execution of a person who is entirely innocent,” they added.

Two years ago, the court in a Texas case said new evidence of a state inmate’s innocence was not reason for a federal court to intervene. But in a Missouri case (Schlup vs. Delo, 93-7901), Justice Sandra Day O’Connor switched sides and agreed that a new hearing is warranted when there is new evidence which, had it been known, “probably” would have resulted in the inmate’s acquittal.