This Article analyzes the use of after-acquired evidence to defeat a discrimination victim's claim against her employer. The use of the Mount Healthy and Price Waterhouse mixed motives analysis in after-acquired evidence cases is misplaced because it is impossible for the permissible motive—resume fraud—to have been a factor in the adverse employment decision. Furthermore, after the enactment of the Civil Rights Act of 1991, it would be an improper judicial intrusion upon the power of the legislature for courts to apply mixed motives analysis to these cases. Besides the constitutional limitation on the judiciary's power created by the Civil Rights Act of 1991, public policy dictates that defendants be held liable for intentionally and illegally discriminating against their employees.
In order for the Civil Rights Acts of 1964 and 1991 to work effectively to eliminate unlawful discrimination in the workplace, defendants must have no means or incentive to escape liability for their wrongful acts. If after-acquired evidence is subject to the mixed motives analysis, a defendant who discriminated illegally against its employee would have every incentive to search for information in the employee's background which could be used to question her truthfulness on her employment application. This search would take place whether or not the employee had misrepresented material facts on the application. It would lead to more costly, prolonged discovery in an age where the courts are attempting to trim pretrial proceedings. Moreover, knowledge that the employer may search the employee's background if the employee files suit against the employer may have a chilling effect on civil rights claims, deterring deserving plaintiffs from bringing discrimination claims. This article sets forth a proposal for dealing with after-acquired evidence in Title VII cases that accounts for employers' legitimate interests as well as those of employees and the public in eliminating discrimination in the workplace.
26 Conn. L. Rev. 145 (1993).
McGinley, Ann C., "Reinventing Reality: The Impermissible Intrusion of After-Acquired Evidence in Title VII Litigation" (1993). Scholarly Works. Paper 157.