Which Motive Applies? Plus, Mixed Motive, and Alternative Claims
Employment law, like any field dealing with the examination of people’s actions, can be a complex field. We recently looked over:
- “Plus” claims, where your employer discriminates against you due to your membership in two or more groups, only one of which must be a protected class ( race, national origin, gender (including gender identity, gender stereotypes, LGBTQ+), age, religion , military status or disability) and
- “Mixed motive” cases, where your employer takes action against you because of your protected class… but also because you are embezzling from the company.
We have also previously explored bringing claims in the alternative, when you aren’t sure which protected class your employer discriminated against you for belonging to (e.g. was it your race or your age?).
After Acquired Evidence – Do Two Wrongs Make a (Civil) Right?
Believe it or not, however, these three types of cases do not represent the only legally important distinctions between the different motives that may be in play when your employer takes an adverse employment action (such as termination, demotion, pay cuts, etc.) against you. A particularly interesting situation arises when you committed a terminable offense, but your employer only finds out after you’re gone.
Two schools of thought easily arise from this scenario. The first, employee friendly perspective, is if the employer did not know about what you did, and particularly if they only found out because they terminated you for an illegitimate reason, your otherwise wrongful actions could not have been the reason you were fired, and thus relying on them as a defense is misguided.
On the other hand, in certain circumstances, employers may have a point (I hope I don’t lose my job for saying this!) If an employee took actions that were severe legal or safety hazards, how could an employer bring them back, potentially putting other employees at risk? In essence, why should someone’s protected class or activity shield them from their actions?
McKennon Steps up to the Plate
The United States Supreme Court took up just this question in McKennon v. Nashville Banner Publishing Company, 115 S.Ct. 879 (1995). In this case, Christine McKennon, a 62-year-old woman was discharged from Nashville Banner, her employer of 30 years. Id. at 882-883. Nashville Banner claimed that the termination occurred as part of a “work force reduction” necessitated by “cost considerations.” Id. McKennon, on the other hand, thought it was due to her age, and filed suit under the Age Discrimination in Employment Act (“ADEA”).Id.
As Nashville Banner took McKennon’s deposition (sworn testimony given in response to questions raised by an opposing attorney and recorded by a court reporter) they uncovered the fact that McKennon “had copied several confidential documents bearing upon the company’s financial condition” and “took the copies home and showed them to her husband” before “she removed and copied the documents for ‘insurance’ and ‘protection.’” Id.
The District Court took Nashville Banner’s side, holding that McKennon’s actions were valid grounds for termination, and prevented her from obtaining any damages even if (as was conceded for summary judgment) Nashville Banner terminated McKennon for discriminatory reasons. Id. citing 797 F.Supp. 604 (MD Tenn.1992). The Sixth Circuit (which, coincidentally is the same appellate court that governs Ohio federal cases) affirmed (or upheld) the District Court’s decision.
The US Supreme Court Decides
The US Supreme Court, however, declined to be so punitive to Mrs. McKennon. As the Court noted:
The ADEA and Title VII share common substantive features and also a common purpose: “the elimination of discrimination in the workplace.” Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979). Congress designed the remedial measures in these statutes to serve as a “spur or catalyst” to cause employers “to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges” of discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417–418, 95 S.Ct. 2362, 2371–72, 45 L.Ed.2d 280 (1975) (internal quotation marks and citation omitted); see also Franks v. Bowman Transp. Co., 424 U.S. 747, 763, 96 S.Ct. 1251, 1263, 47 L.Ed.2d 444 (1976). Deterrence is one object of these statutes. Compensation for injuries caused by the prohibited discrimination is another. Albemarle Paper Co. v. Moody, supra, at 418, 95 S.Ct., at 2372; Franks v. Bowman Transp. Co., supra, at 763–764, 96 S.Ct., at 1263–1264.
Id. at 884. In essence, employment discrimination cases aren’t just meant to compensate deserving employees, they are also intended as a means by which discrimination could be stamped out in American society. As such, while employees cannot rely on their protected class to shield them from their own wrongdoing, employers cannot simply rely on the employee’s wrongdoing to fully shield them from the consequences of their discrimination.
As the Court goes on to state “The disclosure through litigation of incidents or practices that violate national policies respecting nondiscrimination in the work force is itself important, for the occurrence of violations may disclose patterns of noncompliance resulting […]entrenched resistance to its commands, […] which can be of industry-wide significance. Id. at 885. Moreover, the after-acquired evidence case is not a mixed motive case, as the “employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for [that] nondiscriminatory reason.” However, as the Court had previously held in regard to mixed motive cases, a “legitimate reason for discharge […] will not suffice ‘if that reason did not motivate it at the time of the decision’” Id at 885 citing Price Waterhouse v. Hopkins, 490 U.S. 228, 252, 109 S.Ct. 1775, 1791, 104 L.Ed.2d 268 (1989) (plurality opinion, superseded by the Civil Rights Act of 1991, in which Congress “displaced Price Waterhouse in favor of its own version of the motivating factor test.” Comcast Corp. v. Natl. Assn. of African Am.-Owned Media, 589 U.S. 327, 337 (2020)).
Compromise
However, the while to Court goes on to reject the application of the “unclean hands” equitable maxim, they do “recognize the duality between the legitimate interests of the employer and the important claims of the employee” and clarify that the “employee’s wrongdoing must be taken into account.” Id at 886. As a result, the Court held that for after acquired evidence cases “neither reinstatement [getting your job back] nor front pay [compensation for future lost wages] is an appropriate remedy.” Id.
That leaves us with back pay, or wages lost prior to a court decision. Here the Supreme Court decided to split the baby:
Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit. The beginning point in the trial court’s formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered.
Id. Stated more succinctly, absent “extraordinary equitable circumstances” your damages in an after-acquired evidence scenario are restricted to the time between your termination and the date your employer discovered your wrongdoing.
Employment Lawyer Disclaimer
This blog is for general informational purposes only and should not be taken as legal advice regarding your wrongful termination situation. Reading this employment discrimination blog does not create an attorney-client relationship. If you suspect retaliation or wrongful termination, consult a qualified employment lawyer immediately. Each case where an employee is wrongfully fired is unique, and past results do not guarantee future outcomes. This blog is an advertisement for legal services provided by Spitz, The Employee’s Law Firm.