# Amicus Curiae Brief — McKennon v. Nashville Banner Publishing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0503%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1995 - **Citation:** 513 U.S. 352 ## Text eae "peesce Supreme Court of the United States OcTOBER TERM, 1994 Spesaemanis CHRISTINE MCKENNON, | e Petitioner, NASHVILLE BANNER PUBLISHING Co., Respondent. On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit MOTION TO FILE BRIEF AS AMICI CURIAE AND BRIEF AMICI CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL, THE EMPLOYERS GROUP, THE MICHIGAN MANUFACTURERS ASSOCIATION, THE NEWSPAPER ASSOCIATION OF AMERICA, AND THE NEWSPAPER PERSONNEL RELATIONS ASSOCIATION IN SUPPORT OF RESPONDENT LEE T. PATERSON DouGLaAs 8S. MCDOWELL SONNENSCHEIN NATH & ANN ELIZABETH REESMAN * ROSENTHAL McGUINESS & WILLIAMS 601 S. Figuero St. 1015 Fifteenth Street, N.W. Suite 1500 4 Suite 1200 Los Angeles, CA 90017 Washington, D.C. 20005 Attorney for Amicus Curiae (202) 789-8600 The Employers Group Attorneys for Amicus Curiae DWIGHT H. VINCENT Equal Employment Advisory J. WALKER HENRY Council CLARK, KLEIN & BEAUMONT 1600 First Federal Building 1001 Woodward Avenue Detroit, MI 48226-1962 Attorneys for Amicus Curiae Michigan Manufacturers A ‘ati September 8, 1994 * Counsel of Record (List of Attorneys Continued on Inside Cover) WILSON - Epes PrintinG Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001 “BEST AVAILABLE COPY” JOHN F, STURM 529 14th Street, N.W. Suite 400 Washington, D.C. 20045 RENE P. MILAM 11600 Sunrise Valley Drive Reston, VA 22091 Attorneys for Amicus Curiae Newspaper Association of America PETER G. STONE Route 416 Campbell Hall, NY 10916 Attorney for Amicus Curiae Newspaper Personnel Relations Association BEST AVAILABLE COPY "uuumeemee IN THE Supreme Court of the United States OCTOBER TERM, 1994 No. 93-1543 CHRISTINE MCKENNON, 7 Petitioner, NASHVILLE BANNER PUBLISHING Co., Respondent. On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit MOTION OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL, THE EMPLOYERS GROUP, THE MICHIGAN MANUFACTURERS ASSOCIATION, THE NEWSPAPER ASSOCIATION OF AMERICA, AND THE NEWSPAPER PERSONNEL RELATIONS ASSOCIATION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE IN SUPPORT OF RESPONDENT To the Honorable, the Chief Justice and the Associate Justices of the United States Supreme Court: Pursuant to Rule 37.1 and .2 of the Rules of this Court, the Equal Employment Advisory Council, The Employers Group, the Michigan Manufacturers Associa- tion, the Newspaper Association of America, and the Newspaper Personnel Relations Association respectfully move this Court for leave to file the accompanying brief as amici curiae in support of the position of Respondent in this case. The written consent of Respondent Nashville Banner Publishing Co. has been filed with the Clerk of the Court. Although Respondent granted consent to five amicus curiae briefs supporting Petitioner’s position, Petitioner has not responded to our written request to file this brief. In support of their motion, the amici by the following show that this brief brings relevant matters to the atten- tion of the Court that have not already been brought to its attention by the parties. 1. The five amici herein are associations representing private sector employers firmly committed to the principles of nondiscrimination and equal employment opportunity. 2. The Equal Employment Advisory Council (EEAC) is a voluntary association of nearly 300 private sector employers organized in 1976 to promote sound approaches to the elimination of employment discrimination. EEAC’s directors and officers include many of industry’s leading experts in the field of equal employment opportunity. Their combined experience gives the Council a unique depth of understanding of the practical, as well as legal, considerations relevant to the proper interpretation and application of equal employment policies and require- ments. 3. The Employers Group, formerly known as the Merchants & Manufacturers Association, is the largest as- sociation of California employers, with over 5,000 em- ployer members employing an aggregate of more than 2.5 million California employees. 4. The Michigan Manufacturers Association is a busi- ness association composed of private Michigan employers, organized and existing to study matters of general interest to its members, to promote the interests of Michigan em- ployers and of the public generally in the proper admin- istration of laws relating to its members, and to otherwise promote the general business and economic welfare of the State of Michigan. 5. The Newspaper Association of America is a non- profit corporation serving approximately 1,350 newspapers in the United States and Canada. 6. The Newspaper Personnel Relations Association (NPRA) is a non-profit professional association of ap- proximately 370 human resource professionals represent- ing the interests of more than 1,000 daily newspapers na- tionwide. NPRA is a professional emphasis group of the Society for Human Resource Management, which has a membership of more than 60,000 human resource pro- fessionals nationwide. 7. All of the amici’s members, and the constituents of EEAC’s association members, are employers subject to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seg. (ADEA), as well as other equal employ- ment statutes and regulations. As employers, and as potential respondents to ADEA charges and other em- ployment-related claims, the amici’s members are inter- ested in whether employees who falsify their credentials before being hired, or engage in active misconduct after being hired, should have their claims of employment dis- crimination dismissed at summary judgment or be able to recover any remedy. . 8. Thus, the issue presented is extremely important to the nationwide constituencies that the amici represent. The Sixth Circuit below, applying the “after-acquired evi- dence doctrine,” affirmed summary judgment in favor of Respondent because discovery revealed that Petitioner, a confidential secretary to the Banner’s comptroller, had, without approval, copied, removed, and disseminated nu- merous confidential documents. 9. The amici, have an interest in, and a familiarity with, the issues and policy concerns presented to the Court in this case. As employers, the constituent mem- bers that the amici represent have been or are likely to be involved in litigation where a claimant has been shown to have been engaged in misconduct that either would have resulted in the claimant’s not being hired or in being discharged pursuant to established company policy. Numerous lower courts either have dismissed such suits or have greatly limited the remedy available to the claimant. The legal and policy arguments supporting these decisions are set forth in the attached brief. 10. Indeed, because of their significant experience in these matters, the amici are uniquely situated to brief the Court on the relevant concerns of the business com- munity and the significance of this case to employers generally, as opposed to its significance to the immediate parties. The amici also rely on this experience and ex- pertise to respond to the arguments of several amici and the Solicitor General whose briefs support Petitioner, particularly their unsupported arguments that the after- acquired evidence doctrine will undercut the commitment of employers to eliminate unlawful workforce discrimina- tion. WHEREFORE, for the reasons stated, the Equal Employment Advisory Council, The Employers Group, the Michigan Manufacturers Association, the Newspaper Association of America, and the Newspaper Personnel Relations Association respectfully request that the Court grant them leave to file the accompanying brief as amici curiae. Respectfully submitted, ANN ELIZABETH REESMAN McGUINESS & WILLIAMS 1015 Fifteenth Street, N.W. Suite 1200 Washington, D.C. 20005 (202) 789-8600 Counsel of Record for Amici Curiae Equal Employment Advisory Council, The Employers Group. Michigan Manufacturers Association, Newspaper Association of America, Newspaper Personne! Relations September 8, 1994 Association TABLE OF CONTENTS TABLE OF AUTHORITIIG ..............-.-22:--." 2 See, e.g., Agbor v. Mountain Fuel Supp. Co., 810 F. Supp. 1247 (D. Utah 1993) (denying any remedy in case alleging discrimina- tory denial of promotion); Rich v. Westland Printers, 62 Fair Empl. Prac. Cas. (BNA) 379 (D. Md. 1993) (no relief in case alleging discriminatory layoff, promotion and training); Russell v. Microdyne Corp., 830 F. Supp. 305 (E.D. Va. 1993) (denying any remedy in case alleging sex discrimination, sexual harassment and retaliation), appeal docketed, Nos. 93-1895 and 93-2078 (4th Cir.) ; Kravit v. Delta Airlines, 60 Fair Empl. Prac. Cas. (BNA) 994 (E.D.N.Y. 1992) (no state law remedy available for rejected ap- plicant who falsified application); Benson v. Quanex Corp., 58 Fair Empl. Prac. Cas. (BNA) 743 (E.D. Mich. 1992) (granting summary judgment in race discrimination and harassment case) : Grzenia v. Interspec, No. 91 C 20, 1991 U.S. Dist. LEXIS 15093 (N.D. Il. Oct. 21, 1991) (granting summary judgment in ADEA case); Churchman v. Pinkerton’s, 756 F. Supp. 515 (D. Kan. 1991) 15 The decision by a plurality of this Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), does not preclude the use of after-acquired evidence. The Solic- itor General’s brief argues that the plurality opinion in Price Waterhouse imparted a temporal qualification to mixed motive cases, stating that “An employer may not - . . prevail in a mixed motives case by offering a legiti- mate .and sufficient reason for its decision if that reason did not motivate it at the time of the decision.” 490 USS. at 252. But Price Waterhouse did not involve discovery of earlier misdeeds by the plaintiff that would have justi- fied her discharge if known to the employer had those misdeeds not been concealed by the plaintiff. The after-acquired evidence doctrine does not, more- over, involve a mixed motive analysis, nor does it affect a finding of liability. On the contrary, the after-acquired evidence doctrine assumes liability on the part of the employer, but recognizes that evidence discovered later affects the remedies due to the employee if the employee’s misconduct was sufficiently serious that the employee would not have been hired, or would have been dis- charged, had this misconduct been known by the em- ployer. See Summers, 864 F.2d at 708 (“{W]hile such after-acquired evidence cannot be said to have been a (granting summary judgment where plaintiff claimed constructive discharge as a result of sexual harassment) : Sweeney v. U-Haul Co. of Chicago, 55 Fair Empl. Prac. Cas. (BNA) 1257 (N.D. Tl. 1991) (granting summary judgment in race discrimination case) ; Livingston v. Sorg Printing Co., 49 Fair Empl. Prac. Cas. (BNA) 1417 (S.D.N.Y. 1989) (granting summary judgment against race discrimination claimant). But see Massey v. Trump’s Castle Hotel & Casino, 828 F. Supp. 314 (D.N.J. 1993) (adopting Eleventh Cir- cuit rule and allowing retroactive but not prospective relief); Moodie v. Federal Reserve Bank of New York, 831 F. Supp. 333 (S.D.N.Y. 1993) (denying summary judgment due to genuine is- sues of material fact); Benitez v. Portland Gen. Electric, 5&8 Fair Empl. Prac. Cas. (BNA) 1130 (D. Or. 1992) (refusing to follow Summers at summary judgment stage due to lack of Ninth Circuit precedent). 16 ‘cause’ for Summers’ discharge in 1982, it is relevant to Summers’ claim of ‘injury,’ and does itself preclude the grant of any present relief to Summers.”). Where an employee would have been terminated had the employer known the truth, application of the Mt. Healthy principle requires that the employee be placed in no better position as a result of having brought a discrimination claim.” Even if the Price Waterhouse rationale were applicable, however, it would not help Petitioner. The decision was a “mixed motive” case that dealt with the issue of liabil- ity, holding that “once a plaintiff in a Title VII case shows that [a protected characteristic] played a moti- vating part in an employment decision, the defendant may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed [the protected characteristic] to play such a role.” Id. at 244-45. The after-acquired evidence doctrine deals with whether a plaintiff who is shown to have committed an offense that would have resulted in not being hired or in being terminated can recover any remedy. See O'Day, 784 F. Supp...at 1469 (D. Ariz. 1992) (distin- guishing Price Waterhouse); Punahele yv. United Air Lines, 756. F. Supp. 487, 490 (D. Colo. 1991) (same). In either situation, the case should be dismissed if the employer can prove it had a legitimate reason for dis- charging the plaintiff. Where, as here, the plaintiff has 13 Indeed, even those courts that reject Summers agree that while after-acquired evidence has no bearing on liability, it can be relied upon to limit the available remedies. See Wallace v. Dunn Con- struction Company, Inc., 968 F.2d 1174, 1181 (11th Cir. 1992); Mardell v. Harleysville Life Insurance Company, No. 93-3258, 1994 U.S. App. LEXIS 19884, *54-*55 (3d Cir. 1994); Equal Employ- ment Opportunity Commission v. Farmer Brothers Company, Nos. 92-56012, 92-56123, 1994 U.S. App. LEXIS 19788, *27-*28 (9th Cir. 1994) (dicta). 17 engaged in misconduct that legitimately justifies termina- tion, Price Waterhouse would support a decision to dis- miss the case. We urge, therefore, that this Court confirm the after- acquired evidence doctrine as applied by the Fourth, Sixth, Seventh, Eighth and Tenth Circuits. II. AFTER-ACQUIRED EVIDENCE THAT WOULD HAVE LED TO A CLAIMANT’S DISCHARGE IN ANY EVENT B. tS ANY RECOVERY. Petitioner: and the Solicitor General concede that after- acquired evidence of on-the-job misconduct may limit the relief available to the plaintiff in a discrimination case. - Brief of Petitioner at 30; Brief of Solicitor General at 10. The narrow issue presented in this case, therefore, is whether after-acquired evidence of misconduct can bar all remedies, as found by the Sixth Circuit below as well as the Fourth, Seventh, Eighth and Tenth Circuits, or whether it merely limits available remedies, as concluded by the Eleventh Circuit in Wallace y. Dunn Construction Co., Inc., 968 F.2d 1174 (11th Cir. 1992) and the Third Circuit in Mardell v. Harleysville Life Insurance Com- pany, No. 93-3258, 1994 U.S. App. LEXIS 19884 (3d Cir. 1994). A. Applicability of the After-Acquired Evidence Doc- trine Is Strictly Limited to Cases in Which the Employer Can Show That It Would Have Taken Justifiable Adverse Action Had It Known of the Misconduct. The amici herein take special exception to the un- supported assertion of the Solicitor General that employ- ers will eschew compliance with the law and instead rely on “the after-acquired evidence defense as an invitation ‘to establish ludicrously low thresholds for legitimate ter- mination.’” Br. at 17 (quoting Wallace, 968 F.2d at 18 1180). The Solicitor General broadly, yet incorrectly, asserts that “[e]mployers now routinely embark on ex- tensive. post-discharge investigations designed to uncover some theoretically valid post hoc justification for ter- minating an employee who has brought a claim of un- lawful discrimination, instead. of conducting the self- examination and correction of unlawful practices that Title VII and the ADEA are designed to require.” Br. at 18. This attack unfairly characterizes the approach taken by the circuits that have adopted the doctrine. These circuits have established exacting standards that must be met by the employer’s reason and its proof before the doctrine is deemed to apply in a particular case. After-acquired evidence will not bar recovery unless the employer can show that it indeed would have fired the employeé had it known of the misconduct earlier. The Tenth Circuit has articulated the employer's burden of proof as requiring a showing that “(1) the employer was unaware of the misconduct when the employce was dis- charged; (2) the misconduct would have justified dis- charge; and (3) the employer would indeed have dis- charged the employee, had the employer known of the misconduct.” O’Driscoll v. Hercules, Inc., 12 F.3d 176, 179 (10th Cir. 1994), Dg for cert. filed, 62 U.S.L.W. 3757 (U.S. April 1, 1994) (No. 93-1728). The Sixth Circuit below specifically held that the doctrine applies “where the employer can show it would have fired the employee on the basis of the evidence.” Pet. App. 6a. In a prior case involving resume fraud, the Sixth Circuit noted explicitly that “[bJecause [the em- ployer] established that it would not have hired [the plaintiff] and that it would have fired her had it become aware of her resume fraud during her employment, [the plaintiff] is entitled to no relief.” Johnson v. Legge ohn Info. Sys., Inc., 955 F.2d 409, 415 (6th Cir. 1992). Other circuits applying the doctrine are similarly strict. In Kristufek v. Hussman Foodservice Co., 985 F.2d 19 364, (7th Cir. 1993), the Seventh Circuit concluded that the doctrine did not apply because the employer was unable to show that it would have terminated the plain- tiff's employment had it known of his falsified application information. Jd. at 370.'* See also Washington v. Lake County, Illinois, 969 F.2d 250 (7th Cir. 1992) (holding that in a “résumé fraud” case, it is insufficient for an employer to show that the employee would not have been hired, and specifically requiring a showing that the em- ployee would have been fired had the falsification come to light during his employment). Similarly, the Eighth Circuit recently adopted the doctrine in Welch v. Liberty Machine Works, Inc., 23 F.3d 1403 (8th Cir. 1994), but declined to apply it, concluding that the employer’s proof was insufficient. Based on these standards, district courts facing this issue are holding employers to strict proof that the after- acquired evidence indeed would have resulted in dis- charge. See, e.g., Tuohey v. Clark Oil & Refining Corp., No. 92 C 8358, 194 U.S. Dist. LEXIS 8102 (N.D. III. 1994) (denying summary judgment because employer merely showed that it could have, not that it would have. fired the plaintiff had it known of misstatements on his employment application); Anderson vy. Martin Brower Co., No. 93-2333-JWL, 1994 U.S. Dist. LEXIS 9196 (D. Kan. 1994) (denying summary judgment because employer failed to present evidence allowing the court to determine that employee engaged in. misconduct under company policy); Punahele vy. United Air Lines, Inc.. 756 F. Supp. 487 (D. Colo. 1991) (denying summary judgment because material fact remained as to whether employer followed its own procedures or would not have hired plaintiff). -—-— -— '’ Even in this situation, however, the Seventh Circuit reduced the award of backpay to eliminate any recovery for the period after the falsification was discovered. Jd. at 371. 20 As one district court has noted, under Summers and its progeny, “[a]n employer must show that misconduct was such that an employee would have been terminated had the employer known of the misconduct before or at the time of termination. This requirement prevents an employer from combing an employee's file after a dis- criminatory termination to discover minor, trivial or tech- nical infractions for use in a Summers defense.” O’Dris- coll v. Hercules, Inc., 745 F. Supp. 656, 659 (D. Utah 1990 )(emphasis added) (quoted with approval in Wash- ington v. Lake County, Ill., 969 F.2d 250, 255-56 (7th Cir. 1992)), affd 12 F.3d 176 (10th Cir. 1994), peti- tion for cert. filed, 62 U.S.L.W. 3757 (U.S. April 1, 1994) (No. 93-1728) ).* Accordingly, because of this rigorous standard of proof, the Solicitor General’s fear that employers will manufac- ture minimal standards for discharge is unfounded. More- over, no employer realistically could expect to run an efficient workforce while routinely terminating employees for ridiculous reasons. An employer who discharged 15 These standards provide “principled application of standards consistent with . . . [legislative] purposes” (Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975)) so as to justify a denial of remedy and dismissal of this case. Contrary to the arguments of the Petitioner, the Solicitor General and several supporting amici, a remedy to a Title VII plaintiff wha has proven a violation is not necessarily available in all cases. Rather, “backpay is not an auto- matic or mandatory remedy; like all other remedies under the Act, it is one which the courts ‘may’ invoke.” Albemarle Paper, 422 U.S. at 415. | As Title VII’s remedial scheme is not mandatory, it is distin- guishable from the Federal Employers’ Liability Act, 45 U.S.C. § 51, which provides that a common carrier by railroad “shall” be liable for damages to persons injured while employed by such a carrier. Still v. Norfolk & Western Railway Co., 368 U.S. 35 (1961), thus is not relevant to the instant case. Similarly inappli- cable are the Longshoremen’s and. Harbor Workers’ Compensation Act, 33 U.S.C. $904 (“Every employer ‘shall’ be liable. . .”) and Newport News Shipbuilding and Dry Dock Co., 674 F.2d 248 (4th Cir. 1982). 21 employees for only slight infractions soon would find itself with no experienced workers, no productivity, no profits, and an abundance of self-inflicted lawsuits. The Solicitor General’s contention that employers nationwide are attempting to operate this way because of the after- acquired evidence doctrine is offensive and simply - with- out any factual basis. B. The After-Acquired Evidence Doctrine Is Consistent With the Court’s Recent Decision in ABF Freight System. ; For a number of reasons, the after-acquired evidence doctrine is consistent with the Court's recent decision in ABF Freight System v. National Labor Relations Board, 114 S. Ct. 835 (1994). In that case, unlike here, the employer failed to establish that it would have discharged the individual for a violation of a company policy. More- over, the Court’s sole reason for allowing relief to go forward was deference to an agency with special ex- pertise—a factor not applicable to the ADEA, where all cases are heard before a court or jury. In ABF Freight, the Board found that the employer had violated the Act by discharging several casual dock- workers and then offering to reinstate them if they would waive their right to pursue a grievance filed under the collective bargaining agreement. One of these casual workers, Michael Manso, returned to work, but then filed an unfair labor practice charge concerning the earlier terminations. Thereafter, Manso was discharged on the basis that he had violated the employer's disciplinary rules regarding tardiness. The employer argued that Manso should not be rein- Stated because he had lied about the reasons for being late both to the employer and before the administrative law judge (ALJ). The Tenth Circuit enforced the Board’s Order reinstating Manso. The court found substantial evidence to support the Board’s finding “that ABF did not 22 meet its burden of showing that Manso would have been, discharged in the absence of his protected union activity.” Miera v. National Labor Relations Bd., 982 F.2d 441, 446 (10th Cir. 1992), aff'd sub. nom. ABF Freight Sys- tem vy. National Labor Relations Board, 114 S. Ct. 835 (1994) (citing NLRB v. Transportation Management Corp., 462 U.S. 393, 395 (1983)) (employer bears the burden of proving that the employee would have been discharged absent any protected union activity ). This Court agreed that this crucial element was lacking. It noted that “{t]he Board found that the record in this case unequivocally established that ABF did not treat Manso’s dishonesty “in and of itself as an independent basis for discharge or any other disciplinary action.” 114 S. Ct. at 838 n.5 (citing 304 N.L.R.B. 585, 590 (1991)). The Tenth Circuit had noted that “Manso’s original misrepresentation was made to his employer in an attempt to avoid being fired under a policy the appli- cation of which the Board found to be the result of anti- union animus. .. .” Jd. at 838 (quoting 982 F.2d at 447). In contrast, after-acquired evidence cases require that the employer had a valid, enforceable company policy that was violated by the plaintiff. Thus, this Court’s ruling in ABF Freight was as narrow at the issue presented. The sole reason given for not reversing the Board was that the courts should defer to the administrative agency unless its ruling was “arbitrary, capricious, or manifestly contrary to the statute.” 114 S. Ct. at 839. The Court could not say that the Board was obligated to adopt a rigid rule that would foreclose relief in all comparable cases. Although it appeared to be holding its nose in order to defer to the NLRB, the Court clearly discouraged the federal courts from giving sanction to proven misconduct. Thus. the ABF Freight decision forcefully decreed that “(false testimony in a formal proceeding is intolerable. We must neither reward nor condone such a ‘flagrant 23 affront’ to the truthseeking function of an adver ceeding.” Id. at 839. None of the numerous cen de sn ing the after-acquired evidence doctrine were criticized or even cited by the Court, and the ABF Freight decision in no way limits the authority of the federal courts to dismiss cases when the employer (unlike ABF Freight) can show that the employee would have been discharged for lying or breaching a valid company disciplinary policy. Thus, ABF Freight closely resembles these cases cited above in which the courts, while recognizing the validity of the after-acquired evidence doctrine, declined to apply it in a particular case because of a failure of the employer’s proof. In such a case, the applicability of the doctrine as a complete bar to relief is foreclosed. Nevertheless, the fact of the misconduct remains, and is still relevant to the determination of an appropriate remedy. Accord Kristufek ve Hussman Foodservice Company, 985 F.2d 364 (7th Cir. 1993) (holding that employer failed to show that employee would have been fired had the employer known of the falsified educational qualifications, but ordering verdict reduced to deduct damages and attorney’s fees for the time following discovery of the falsification). Indeed, this Court acknowledged in ABF Freight that the NLRB could have limited—or even denied—any rem- edy available to the employee: We recognize that the Board might have decided that such misconduct disqualified Manso from profiting from the proceeding, or it might even have adopted a flat rule precluding reinstatement. when a former employee so testifies. As the case comes to us, how- ever, the issue is not whether the Board might adopt such a rule, but whether it must do so. 114 S. Ct. at 839 (emphasis in original). In the same manner, Justice Kennedy’s concurrence confirmed the ap- propriateness of considering misconduct in granting a remedy: 24 [Bjoth employer and employee have reason —— upon honesty in the resolution of disputes within t : workplace itself. And this interest, too, is not beyon the Board’s discretion to take into account in fashion- ing appropriate relief. 114S. Ct. at 840 (Kennedy, J., concurring). Accordingly, while the Court in ABF Freight deferred to the NLRB’s authority to craft an appropriate remedy, this in no way detracts from the authority of courts to arrive at an appropriate remedy in a case involving after- acquired evidence. ity Commission C. The Equal Employment Opportuni Also Has Espoused the Doctrine, But Then Re- versed Its Position. The Solicitor General now contends that backpay can be limited—and reinstatement and front pay can be defeated entirely—based on after-acquired evidence - where discrimination has occurrred. Br. at 23-25. The brief cites in support the Revised Enforcement Guide on Recent Developments in Disparate Treatment Theory issued by the Equal Employment Opportunity oe (EEOC), the federal agency having enforcement authority over the ADEA and Title VII. /d. at 26. The Solicitor General’s brief, however, fails to gn the Court that the Commission ‘Previously a after-acquired evidence doctrine in toto as ee in Summers, as a bar to all remedies. In March 1 “ . 4 the predecessor to the cited Revised Enforcement port the EEOC issued guidance directing its own staff to take a strict Summers approach: Where a plaintiff proves by direct evidence that wa crimination was the exclusive basis for an emp a ment decision, or where (s)he establishes that “ crimination was a motive for the action, and a employer cannot prove that a legitimate motive wou ee 25 have induced it to take the same action, then liability is established. At a minimum, the charging party is entitled to injunctive relief and attorney’s fees. How- ever, in these circumstances, as in cases where dis- crimination is proved through circumstantial evidence, the employer may be able to limit other relief avail- able to the plaintiff by showing that the after-the-fact lawful reasons would have justified the same action. For example, if a charging party is terminated for discriminatory reasons, but the employer discovers afterwards that she stole from the company, and it has an absolute policy of firing anyone who commits theft, then the employer would not be required to reinstate the charging party or to provide back _ pay. -.. See, e.g., Summers v. State Farm Mutual A uto- mobile Insurance Co., 864 F.2d 700, 48 EPD € 38,543 (10th Cir. 1988) (plaintiff entitled to no relief where evidence that he falsified numerous com- pany records was discovered after termination); Smallwood v. United Air Lines, Inc., 728 F.2d 614, 33 EPD 4 34,185 (4th Cir.), cert. denied, 469 U.S. 832, 35 EPD © 34,663 (1984) (while the airline’s policy of not processing applications of persons over age 35 for the position of flight officer was a viola- tion of the ADEA, the airline was not compelled to grant full relief to the plaintiff, since the airline proved that had it considered plaintiff's application, it would not have hired him on the basis of other lawful reasons); Mathis y. Boeing Military Airplane Co., 719 F. Supp. 991, 994-5, 51 EPD © 39,347 (D. Kan. 1989) (material omissions on plaintiff's employment application discovered after termination preclude relief on her Title VII claims). Even if the charging party is not entitled to indi- vidual relief, the Commission can lawfully seek relief for any other identifiable victims of the discrimination. Policy Guidance on Recent Developments in Disparate Treatment Theory, N-915.063, EEOC Compl. Man. 26 N:2129 at 2132-33 and n.17 (emphasis added ). ae this guidance, then the Commission would not ithe sought any individual relief on behalf of a greeny ea where after-acquired evidence of application fraud sho that termination was inevitable.” ? The Commission issued new guidance on J uly ser Pet in which it changed its position on after-acquired evidence: [I}f the employer produces proof of a ag cor ever peer covered after-the-fact that would have in aged Ber take the same action, the employer will S som from.an order requiring it to reinstate the orga ant or to pay the portion of back pay ng gp si the date that the legitimate basis for the a action was discovered .... Revised Enforcement Guidance on Recent gees in Disparate Treatment Theory, N-914.002, Compl. Man. (BNA) N:2135, N:2154. The Commission gave no reason for its — ye tion, and did not even acknowledge that ac — occurrred. Because it has taken inconsistent = ee EEOC’s current pronouncement is entitled to no a e _ General Electric Co. v. Gilbert, 429 U.S. 125, (1976). Moreover, the consequences of the gees sa approach before this Court are alarming. Under t ~ ns mission’s revised position, an employee who wou —_-— aa le laa t 16 The Commission’s guidance notes that while it is ge ete cover Title VII. “the same general principles — charges brought under the Age Discrimination in Employment Act. N-915-063, EEOC Compl. Man. (BNA) N :2119. , it i lear why the istence of this guidance, it is unc "Given the — > to the Solicitor General’s brief, would state atory ” Brief of Solicitor tri bas res and obstructs 1 at 14 n.6, and that the doctrine “igno rer Commission, sign now that “The court erred in Summers . . 7s ® ” rn cai public policy goals of the ADEA and Title VII. of Solicitor General at 16. Policy 4 a « < l 7? 27 been discharged for misconduct had the employer known of it nevertheless would receive backpay for a period of time solely because the wrongdoing fortuitously went un- discovered. For example, if an employee who is laid off in a force reduction sues for age discrimination, and during a later audit is found to have embezzled money from company accounts, under the Commission’s theory that employee may be entitled to backpay up until the date the embezzlement is discovered. This view converts Title VIf and ADEA remedies into a reward for successfully concealing misconduct rather than simply providing a remedy for discrimination. D. Public Policy Supports Application of the After- Acquired Evidence Doctrine as a Bar To All Remedies. The after-acquired evidence doctrine, as applied by the Fourth, Sixth, Seventh, Eighth and Tenth Circuits, serves the remedial “make whole” purpose of federal antidiscrim- ination legislation by placing claimants in the position they would have been in had the discriminatory conduct not occurred, but not rewarding them for actively engaging in wrongdoing. In after-acquired evidence cases, the claim= ant has committted actual misconduct—providing false answers to legitimate job application questions, theft of confidential company documents, or falsification of rec- ords."* To grant such an individual compensation such '® The fact of actual misconduct distinguishes cases in which the after-acquired evidence doctrine applies from the hypotheticals sug- gested by Petitioner. For example, Petitioner contends that under the doctrine as currently applied, “an employer could avoid liability in a hiring case by showing that, at the time it rejected a qualified black applicant on account of race, there was a better qualified white available for the position, even though the white had never applied for the job and the employer only learned of his or her existence long after the black applicant had been rejected.” Brief of Petitioner at 25-26. On the contrary, the after-acquired evidence doctrine is not used absent some type of active misconduct on the part of the employee. 28 - a ~ as backpay rewards the employee for managing to conceal his misconduct from the employer. As one court has pointed out, “every falsehood has te components, the prevarication itself and the ge fact misrepresented or omitted. Either component pone give cause for immediate termination.” Baab VY. eon R Servs. Corp., 811 F. Supp. 1246, 1260 (N.D. Ohio ae . Employers thus have two significant interests in shag truthful answers from their prospective oe gene regarding the applicant’s qualifications for the gmc . ’ other regarding their fundamental honesty as a characte trait. | An employee who misappropriates confidential ao pany documents and goes undiscovered for a eer . time already has profited once by his own wrong me The argument that the employee should receive a : i- tional monetary remedy for the period in which the “e ployer was unaware of the theft would be an ponies windfall, also at the employer's expense, because t : employee succeeded in keeping that wrongdoing _— Accordingly, this Court should adopt the earece e evidence doctrine as a complete bar to remedies in em- ployment discrimination cases. 29 CONCLUSION For the foregoing reasons, the amici curiae respectfully submit that the decision of the Sixth Circuit should be affirmed. Respectfully submitted, LEE T. PATERSON DoucGLas S. McDowELL SONNENSCHEIN NATH & ANN ELIZABETH REESMAN * ROSENTHAL McGUuINEss & WILLIAMS 601 S. Figuero St. 1015 Fifteenth Street, N.W. Suite 1500 Suite 1200 Los Angeles, CA 90017 Washington, D.C. 20005 Attorney for Amicus Curiae (202) 789-8600 The Employers Group — Attorneys for Amicus Curiae DWIGHT H. VINCENT Equal Employment Advisory J. WALKER HENRY Couneil CLARK, KLEIN & BEAUMONT 1600 First Federal] Building 1001 Woodward Avenue Detroit, MI 48226-1962 Attorneys for Amicus Curiae Michigan Manufacturers Association JOHN F. Sturm 529 14th Street, N.W. Suite 400. Washington, D.C. 20045 RENE P. MILAM 11600 Sunrise Valley Drive Reston, VA 22091 Attorneys for Amicus Curiae Newspaper Association of America PETER G. STONE Route 416 Campbell Hall, NY 10916 Attorney for Amicus Curiae Newspaper Personnel Relations Association September 8, 1994 ® Counsel of Record --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0503%3A15. Public record. Not legal advice.