Alternate Title

Now We Have Reason to Fire You: What Should States Do About the Employer “After-Acquired” Employee Wrongdoing Defense?


Employment law, employment termination.


Wrongful employer conduct, particularly discrimination and harassment, is leading to efforts to provide more protection to employees, and compensate them for wrongdoing already done to them. As shown by the Michigan Supreme Court’s July 2021 Lichon v. Morse decision that adopted a new and more pro-employee standard for when employers can compel employees to arbitrate instead of sue over claims of sexual harassment, much of the protection of employees may occur at the state level. Which makes it unfortunate that little attention is being paid to how states treat the employer after-acquired evidence defense that can undermine new and existing employee protections. Under that affirmative defense, if after the employee’s termination, or an employee’s claim against the employer, the employer discovers a “misrepresentation” or mistake that employee made in the application process, or any misconduct the employee committed while working for the employer, that employer can rely on that evidence to bar the employee’s claim or eliminate most of employee’s remedies. This article proposes that this 30+-year-old defense should be revisited given all the 21st century changes in hiring and employment relationships, including the ban-the-box movement and laws regarding criminal records and the #MeToo movement aimed at ending harassment and gender discrimination.



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