The “After-Acquired Evidence” DefenseTakes a Hit

Employers who are sued for discrimination or retaliation will sometimes attempt to use what is known as the “after-acquired evidence” defense to limit the amount of damages that an employee can recover. This defense took a hit in the recently decided case of Redvanty v. Automated Data Processing, A-4082-06, thanks to the good work of the plaintiff’s attorney, John Shahdanian II, of Secaucus, NJ.

The “after-acquired evidence” defense is used by employers who learn, after the employee has been terminated, that the employee had committed some misconduct either during their employment or during the interview process, such as lying on their job application. Employers argue that, if they had learned about the misconduct during the employment, they would have either fired the employee right then and there or never hired them in the first place. If an employer convinces a court that the defense should be applied, then the court will give the jury the option of reducing the employee’s damages — even if the employee has an otherwise valid discrimination or retaliation claim.

In the Redvanty case, the trial court let the jury hear the “after-acquired” evidence of the fact that the plaintiff had lied on her job application during the liability phase of the trial. The jury decided the case in favor of the employer. On appeal, Ms. Redvanty argued that the jury should only have been told about the job application during the damages phase of the trial, after the issue of liability had been resolved. The Appellate Division agreed, holding that the admission of the “after-acquired” evidence during the liability phase of the trial prejudiced the jury.

The Appellate Division then remanded the case, meaning that it was sent back to the trial court to be retried. At the new trial, the evidence will only be admitted during the liability phase if the trial court finds that the employer “definitely” would have fired Ms. Redvanty if it knew she had lied on her job application.

This is a very good decision for New Jersey employees. It clarifies that “after-acquired evidence” should not be used during the liability phase of a trial, except in rare circumstances where employer can prove that it “definitely” would have fired the employee sooner.