Introduction
On July 26, 1990, at the signing of the Americans with Disabilities Act (ADA), President George H.W. Bush hailed the landmark legislation as a “declaration of independence” for people with disabilities.1 However, in the thirty years that have followed the bill’s passage, researchers, activists, and scholars alike have questioned whether the ADA has succeeded in its broad aspirations, particularly in the provisions aimed at improving employment opportunities for individuals with disabilities.2 In 2020, the U.S. Department of Labor reported that only 17.9% of people with disabilities were employed, as compared to an employment rate of 61.8% for people without disabilities.3 Additionally, the unemployment rate for people with disabilities in 2020 was 12.6%.4 Although the Department of Labor believes the data reflect the impact of the COVID-19 pandemic on employment, the unemployment rate for people with disabilities remained higher than the national average, which sat at 8.1% for the same year.5 To some disability-rights activists, these numbers paint a troubling picture.6
Coupled with these concerning statistics is the high number of reported claims of disability discrimination in the workplace.7 In February 2021, the U.S. Equal Employment Opportunity Commission (EEOC) released a detailed breakdown of the 67,448 complaints of workplace discrimination that the agency received in 2020.8 Disability discrimination comprised 36.1% of claims filed, the second most common type of discrimination alleged, preceded only by reported retaliation claims.9 Additionally, although only a fraction of these claims resulted in relief for the claimant,10 huge backlogs and resource limitations faced by the EEOC have resulted in the Commission closing a large number of cases without investigation, thus forcing complainants to file a lawsuit on their own dime.11
Such employment access and discrimination hardships for people with disabilities have only been exacerbated by the COVID-19 pandemic, as it has been reported that nearly one million workers with disabilities lost their jobs in the immediate months following the start of the pandemic.12 Furthermore, the long-term effects of a coronavirus infection, such as extreme fatigue, organ damage, and trouble breathing, may result in an increased number of individuals with a legally-recognized disability, which would have major implications for disability and discrimination law.13 In sum, this evidence underscores the fact that, in the thirty years that have followed the passage of the ADA, people with disabilities are still fighting for improved employment access and opportunity, and they continue to face instances of overt discrimination in the workplace.14
The ADA was designed to serve a variety of purposes all aimed at eliminating barriers imposed upon people with disabilities that have kept them excluded from gainful employment and, more broadly, full and fair participation in American society.15 One method of guaranteeing such integration was to provide individuals with disabilities the right to file suit against infringing employers.16 This served the purpose of protecting the civil rights of people with disabilities while simultaneously ensuring that instances of disability discrimination were rooted out.17 However, as employment discrimination claims proliferated, employer defenses developed too.18
One such defense used by defendants facing an employment discrimination suit is the after-acquired evidence rule.19 Initially, if the defendant-employer had discovered evidence of the plaintiff-employee’s misconduct after the employee had been wrongfully discharged, and could prove that such evidence would have served as a legitimate basis for firing said employee, the defense could be used to defeat the discrimination suit in its entirety.20 However, following the Supreme Court’s ruling in McKennon v. Nashville Banner Publ’g Co., discrimination suits would no longer be completely barred if the defendant-employer adequately pleaded the after-acquired evidence defense.21 The plaintiff’s damage award, however, would be limited.22 Nevertheless, defendant-employers still assert the after-acquired evidence defense in attempts to defeat claims of discrimination, and recently, a split in the federal circuit courts has emerged regarding the applicability of the defense to disability discrimination suits brought under Title I of the ADA.23
Unlike other antidiscrimination statutes, such as Title VII of the Civil Rights Act, plaintiffs asserting violations of the ADA must show that they fall under the statutorily-defined category of a “qualified individual.”24 In light of this additional requirement, defendant-employers have argued that after-acquired evidence that contradicts the plaintiff’s status as a qualified individual, rather than just serving as blanket evidence of wrongdoing, is enough to bar disability discrimination suits brought under the ADA, thus circumventing the holding in McKennon.25 Some circuit courts have granted outright dismissal of suits when facing after-acquired evidence that the plaintiff was not a qualified individual; others have followed the ruling in McKennon and allowed the claim to proceed.26
This Note will argue that the federal courts should not allow after-acquired evidence, bearing on a plaintiff’s status as a qualified individual, to defeat ADA employment discrimination suits, as allowing such suits to proceed vindicates the purpose and function of the ADA and is in line with the Supreme Court’s precedent set in McKennon. Part I will explore the history and purpose of the ADA, consulting both the statute’s text and legislative history.27 It will also discuss the function and purpose of the qualified individual prong and briefly explore how the EEOC and the courts have come to understand and define the requirement.28 Part I will then turn to the development of the after-acquired evidence rule, beginning by examining its use prior to the ruling in McKennon,29 then analyzing the McKennon holding itself,30 and finally discussing the consequences of McKennon and the subsequent use of the after-acquired evidence rule.31 Part II will analyze the general problems that plague the use of after-acquired evidence in discrimination suits, highlighting the chilling effect it plays on potential meritorious discrimination claims and its shifting of focus away from the employer’s discriminatory actions onto the plaintiff’s integrity.32 It will then examine the after-acquired evidence rule in relation to employment discrimination suits involving the ADA’s qualified individual prong. Part II will argue that after-acquired evidence, used to prove that a plaintiff is not a qualified individual, should not be allowed to defeat an employment discrimination lawsuit. Dismissing such lawsuits would defeat the deterrence and legal recourse purposes of the ADA and allow employers to avoid having to provide reasonable accommodation to employees with disabilities.33 Additionally, Part II will consider the McKennon reasoning and assert that the holding must apply to all ADA suits in the same manner it does to other antidiscrimination statutes.34 Lastly, Part III will argue for broader deference to the EEOC in order to avoid the problems arising from the use of after-acquired evidence in ADA cases.35 Part III will also argue that the use of after-acquired evidence by defendant-employers be viewed under the lens of retaliation, thus leaving plaintiffs some options for legal recourse if their discrimination suit is thrown out.36
I. Background
A. The Americans with Disabilities Act of 1990
Following the passage of the Rehabilitation Act of 1973, which banned discrimination on the basis of disability for individuals receiving federal funds,37 there was—thanks to the massive organizing efforts of disability-rights activists—a shift in disability public policy, in which the exclusion of people with disabilities from all aspects of society came to be viewed as unlawful discrimination.38 Disability-rights activists channeled much of the same language and strategies as the Civil Rights Movement of the 1950s and 1960s, fighting to end the segregation of disabled people from society and the “out of sight, out of mind” mentality that accompanied it.39 This action culminated in the introduction of the ADA40 in 1988, and its passage and signage by President Bush in 1990.41
Prior to the ADA’s passage, Congress made numerous findings regarding the status of people with disabilities in American society. These findings were then included in the text of the statute.42 Most notably, Congress determined that many individuals with physical or mental disabilities have been prevented from fully participating in all aspects of society due to disability discrimination.43 Additionally, Congress found that discrimination occurs in critical areas, such as employment and housing, and that individuals who have experienced disability discrimination often do not have any legal recourse.44 Therefore, it became Congress’s goal to “assure equality of opportunity, full participation, independent living, and economic self-sufficiency,” for individuals living with a disability.45 The stated purpose of the ADA was to: (1) eliminate discrimination against people with disabilities; (2) provide enforceable standards aimed at this elimination; (3) ensure that the federal government “plays a central role” in enforcing the statute’s standards; and (4) “invoke the sweep of congressional authority,” to address issues of disability discrimination.46
The ADA’s prohibitions on discrimination apply broadly to practically all areas of public life including employment, schools, transportation, and public and private areas open to the general public.47 Title I of the ADA deals specifically with employment, barring discrimination against individuals with disabilities in the workplace and, in some instances, requiring employers to make reasonable accommodations to workers with disabilities.48 Covered employers, which includes private and public employers with fifteen or more employees,49 are prohibited from discriminating against “qualified individuals” on the basis of disability with respect to job application procedures, hiring, firing, compensation, training, advancement, and “other terms, conditions, and privileges of employment.”50 Disability discrimination can manifest in a number of ways such as classifying an employee or applicant, based on their disability, in a manner that harms their employment opportunities, or denying such individuals equal benefits due to their disability.51 Importantly, unlike the other antidiscrimination statutes, the ADA states that an employer’s failure to make a reasonable accommodation to an otherwise qualified applicant or employee, or denying such individuals employment based upon their need for a reasonable accommodation, is also unlawful.52
Although the statute’s text provides insight into the purpose and function of the ADA, a review of the ADA’s legislative history further clarifies Congress’s intent in drafting and passing the bill. Ultimately, it is apparent that one of Congress’s primary goals was to eliminate barriers imposed on persons with disabilities that have kept them excluded from full and fair participation in American society.53 Particularly, in relation to employment discrimination, Congress intended to send a message to employers that discrimination on the basis of disability would not be tolerated54 and to assure people with disabilities that they would be able to turn to the federal government for protection against such discrimination and to secure their civil rights.55
In support of this stated purpose, Congress cited statistics that purported to show that people with disabilities, although desiring to work, faced high rates of unemployment, with many such individuals citing discrimination as a huge obstacle to employment.56 Furthermore, during congressional debate, the drafters often invoked the Civil Rights Act of 1964, stating that they wanted to extend the relevant protections of the Civil Rights Act to those with disabilities.57 In sum, the ADA’s text, combined with its extensive legislative history, provides strong evidence that one important manner in which Congress aimed to eradicate disability discrimination was allowing people with disabilities access to the judicial system in order to vindicate their rights.58
The ADA was amended once, in 2008, with the signage of the Americans with Disabilities Act Amendments Act (ADAAA).59 Notably, Congress re-emphasized that the ADA was intended to “provide broad coverage” and that Congress was explicitly rejecting several Supreme Court cases that had worked to narrow the broad coverage intended to be afforded to persons with disabilities under the ADA.60 In particular, Congress expanded the definition of “disability” in order to ensure that applicable individuals were covered by the text “to the maximum extent permitted.”61
Like several other antidiscrimination statutes, enforcement of Title I of the ADA falls under the purview of the EEOC.62 A plaintiff must first file an administrative complaint with either the EEOC or the requisite state or local fair employment practice agency.63 Plaintiffs can only file in federal court once the EEOC has issued a “right-to-sue” letter, and plaintiffs can request a letter if the EEOC has not acted within 180 days of filing.64 In order for a plaintiff to establish a prima facie case under the ADA, courts have generally held that the plaintiff must show that they have a disability within the meaning of the ADA, are a qualified individual, and were discriminated against or suffered adverse employment action because of their disability.65
B. Who Is a Qualified Individual Under the ADA?
One major difference between the ADA and other antidiscrimination and federal civil rights statutes is the requirement that, for an individual to fall under the protection of the ADA, they must be classified as a “qualified individual.”66 The ADA defines a qualified individual as a person “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”67 Since Congress wanted the ADA to apply broadly, the text of the statute provides little guidance as to the specific definitions of “qualified individual,” “reasonable accommodation,” and “essential functions of employment.”68 Therefore, to determine the congressional purpose behind the qualified individual language and explain its inclusion in the statute’s text, one must turn to the ADA’s legislative history.
The qualified individual language was primarily borrowed from Section 504 of the Rehabilitation Act, which states that no recipients of federal financial assistance shall discriminate against an “otherwise qualified individual with a disability.”69 The legislative history surrounding the qualified individual prong of the ADA notes that the underlying premise of Title I, in light of the pervasive misconceptions surrounding the abilities of persons with disabilities, is to ensure that such individuals are not excluded from employment opportunities unless they truly cannot perform the job at hand, even when a reasonable accommodation is provided.70
Much of the relevant legislative history is dedicated to discussing the inclusion of the phrase “essential function” in the definition of qualified individual.71 Particularly, the legislators emphasized that the point of the phrase’s inclusion was to guarantee that employers could still require that all employees, including employees with disabilities, be able to perform the necessary, namely the “non-marginal,” functions of the job.72 Therefore, the legislative history shows that Congress intended to uphold the employer’s freedom to select applicants, based upon their relevant qualifications, so long as the selection is not grounded on an individual’s disability or need for a reasonable accommodation.73 Ultimately, if the employee is able to perform the non-marginal functions of the position, even if a reasonable accommodation is needed, that person is a qualified individual under the ADA and cannot be turned away from the position solely due to their disability or need for an accommodation.74
Although the ADA’s text and legislative history provide some insight into who may be classed as a qualified individual, the federal courts and the EEOC have further elaborated upon the requirement. The EEOC and several courts agree that, to establish that an employee is a qualified individual, said employee must satisfy the requisite job-related requirements and show that they can perform the essential functions of the position, with or without reasonable accommodation.75 Such job-related requirements may dictate that the individual possess related skills, experience, education, or other capabilities needed to adequately perform the essential functions of the job.76 Many courts have utilized a two-step inquiry when deciding whether an employee is a qualified individual, with the court first determining that the individual satisfies the pre-requisites of the position—for example, possessing the relevant education or training—then finding that they can perform the essential functions of the job.77 Essential function has ultimately been defined as the position’s fundamental duties, excluding any marginal responsibilities.78
C. Development of the After-Acquired Evidence Rule
The use of after-acquired evidence to rebut claims of employment discrimination initially arose in the case Summers v. State Farm Mutual Automobile Insurance Co.79Summers v. State Farm Mut. Auto. Ins., 864 F.2d 700, 704 (10th Cir. 1988); see also Kenneth A. Sprang, After-Acquired Evidence: Tonic for an Employer’s Cognitive Dissonance, 60 Mo. L. Rev. 89, 102 (1995). Following Summers, the use of after-acquired evidence in discrimination cases proliferated, resulting in extensive debate about the defense’s applicability to employment discrimination cases and thus a host of conflicting decisions by the circuit courts.80 After-acquired evidence is generally defined as evidence of employee misconduct, that would have served as a legitimate basis for firing said employee, discovered after the employee has been wrongfully discharged and has brought a wrongful termination or employment discrimination lawsuit.81
Prior to the Supreme Court’s decision in McKennon v. Nashville Banner Publishing Co., the federal courts dealt with the after-acquired evidence defense in various ways.82 Some courts upheld summary judgment in favor of the employer,83 while others denied summary judgment but allowed the evidence to limit potential relief.84 Some state courts, such as the California Court of Appeals for the Second Division, refused to adopt a blanket rule one way or the other.85 The disagreement throughout the courts ultimately resulted in the Supreme Court granting certiorari to resolve the split in McKennon v. Nashville Banner Publishing Co.86, 513 U.S. 352.
D. McKennon v. Nashville Banner Publishing Co.
McKennon stemmed from an employment discrimination lawsuit brought by Christine McKennon against her employer, Nashville Banner Publishing Company.87 McKennon was sixty-two years old when she was fired from her position as a secretary, prompting her to bring an age discrimination suit under the Age Discrimination Employment Act of 1967 (ADEA).88 In a deposition taken by defendant in preparation for the case, McKennon admitted that she had impermissibly copied several of the company’s confidential documents and showed them to her husband.89 Nashville Banner initially alleged that her dismissal was part of a workforce reduction plan in order for the company to cut costs.90 However, in light of McKennon’s deposition, Nashville Banner moved for summary judgment, conceding that it had discriminated against McKennon, but arguing that the after-acquired evidence of McKennon’s misconduct barred all relief.91 The district court granted the motion for summary judgment,92 and the Sixth Circuit affirmed, stating that the after-acquired evidence doctrine barred all relief.93
Ultimately, however, the Supreme Court reversed the granting of the motion for summary judgment.94 The Court held that after-acquired evidence of employee wrongdoing, which would have served as grounds for lawful termination had it been discovered during the employee’s active employment, did not bar the employee’s age discrimination lawsuit brought under the ADEA.95 Justice Kennedy, speaking for a unanimous court, recognized that the ADEA was enacted as part of a wider statutory scheme aimed at ending discrimination in the workplace.96 This scheme also included Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the National Labor Relations Act, and the Equal Pay Act of 1963.97 The Court also highlighted that deterrence against discriminatory employer practices and compensation for victims of discrimination are two of the main goals of the statutory scheme.98 The Court then reasoned that an employee who files a workplace discrimination lawsuit against their employer serves both of these objectives, and it would not fit with the antidiscrimination scheme, created by the federal civil rights laws, if after-acquired evidence was able to defeat discrimination lawsuits in every such instance.99
Although the Court did not allow after-acquired evidence to defeat the employment discrimination suit, it noted that such evidence could be used to limit damages recoverable by the plaintiff.100 The Court held that the employee’s wrongdoing becomes relevant, not in order to punish them or to prevent them from benefitting from their own wrongful acts, but to preserve the employer’s freedom of choice.101 Therefore, although after-acquired evidence may not be used to bar a plaintiff’s suit, once an employer has proven that the employee’s wrongdoing would have been severe enough to warrant their termination, neither front pay nor reinstatement is an appropriate remedy, and an award of back pay should be calculated up to the point the employer learned of the wrongdoing.102
Following McKennon, the EEOC released limited enforcement guidelines on the use of after-acquired evidence in order to analyze the Court’s holding and its impact on future employment discrimination lawsuits and to instruct EEOC investigators on how to proceed.103 Ultimately, the EEOC noted that the McKennon Court “essentially endorsed” the EEOC’s position that an employer will and should be held liable for their discriminatory actions, regardless of the employee’s alleged misconduct.104 The EEOC instructed investigators, when examining discrimination cases involving after-acquired evidence, to look into the severity of the misconduct and the employer’s response to similar transgressions to determine whether the employee’s conduct would have otherwise served as sufficient grounds for termination.105
E. The Consequences of the McKennon Ruling and Further Circuit Splits
Although the McKennon ruling limited how after-acquired evidence could be used in discrimination suits, it left the door open for defendant-employers to assert the defense, and the practice remains used today.106 The portion of the Court’s holding in McKennon that allows the evidence to limit potential damage awards has resulted in defendants continuing to plead after-acquired evidence when facing employment discrimination lawsuits.107 Consequently, employers have asserted a host of evidence as alleged proof of employee misconduct, ranging from misrepresentations on the employee’s resume to purported sexual harassment.108 Additionally, although the McKennon Court only directly addressed after-acquired evidence used to combat ADEA suits,109 the ruling has been applied by the federal courts to cases arising under Title VII of the Civil Rights Act,110 the Equal Pay Act,111 and other federal and state discrimination laws.112
Nevertheless, although the Supreme Court restricted the use of after-acquired evidence to a limitation on damage awards, employers have sought workarounds. In particular, when fighting disability discrimination cases brought under the ADA, employers have strategically attempted to use late-discovered information that the plaintiff is not a qualified individual, and thus does not fall under the protection of the ADA,113 in order to defeat disability discrimination suits in their entirety.114 Therefore, if the particular court allows the after-acquired evidence to be used in such a manner, the defendant may be able to defeat the discrimination lawsuit without reaching a decision on the merits of the suit, a circumvention of the holding in McKennon.115 For example, in the recent Ninth Circuit case Anthony v. Trax International Corp., the defendant successfully used after-acquired evidence that the plaintiff had lied on her resume about possessing a bachelor’s degree, which was required for the position she had held, to prove that the plaintiff was not a qualified individual under the ADA.116 Instead of using the late-discovered information as evidence of employee misconduct—which would have led to a limitation on the plaintiff’s potential damage award but would have otherwise allowed the suit to proceed117—the defendants used it to prove that she did not satisfy the job prerequisites, which would have prevented her from being classified as a qualified individual under the ADA altogether.118
Thus, a new split in the federal courts has emerged as to whether after-acquired evidence, bearing on the plaintiff’s status as a qualified individual, can completely defeat a disability discrimination suit, rather than serving solely as a limitation on damages. The Fifth,119 Sixth,120 and Ninth121 Circuits have each held that McKennon’s limitation on after-acquired evidence does not extend to evidence used to show that a plaintiff is not a qualified individual and thus can serve as the basis for a suit’s dismissal. The courts in these cases generally argued that since the text of the ADA protects only qualified individuals, the plaintiff carries the initial burden of establishing that they are a qualified individual when asserting their prima facie case.122 If their status as a qualified individual can be rebutted by the employer’s after-acquired evidence, their case may be dismissed.123
Alternatively, the Seventh Circuit has held that after-acquired evidence would not completely bar relief in such qualified individual cases, as the court could not find a distinction between cases arising under the ADA and the ADEA claim brought in McKennon.124 Therefore, the court reasoned that the limitations placed on after-acquired evidence in McKennon should apply to qualified individual suits as well, and the case should be allowed to proceed.125 The Third Circuit has also ruled on this issue in two separate cases, however, with seemingly inconsistent results.126 In one instance, the court held that after-acquired evidence bearing on plaintiff’s status as a qualified individual could be used to defeat the lawsuit, and in the other, held that such evidence could only be used to limit damages.127 The district courts are similarly split on the issue, with some holding that after-acquired evidence may be fatal to discrimination suits,128 and others asserting that the evidence may only be used to limit damages, in line with McKennon.129 Ultimately, in light of this recent circuit split, the issue is ripe for adjudication by the Supreme Court. However, seeing as the Supreme Court only grants certiorari to a select number of cases,130 the lower courts should proceed—when confronted with a disability discrimination lawsuit involving after-acquired evidence relating to the plaintiff’s status as a qualified individual—by following the precedent set in McKennon v. Nashville Banner Publishing Co. and only allowing the evidence to serve as a limitation on damages.
II. Analysis
A. The General Problems with the Role of After-Acquired Evidence
Although the McKennon Court attempted to provide some clarity on the role after-acquired evidence should play in discrimination lawsuits, by refusing to ban it outright, after-acquired evidence is still used by defendant-employers, and debate over its applicability continues today.131 In McKennon, the Supreme Court recognized that allowing employers to assert the after-acquired evidence defense preserved the employer’s important right to control business matters related to its workplace.132 However, in striking this balance, the Court may have inadvertently harmed the ability of employees to bring meritorious discrimination lawsuits.
First, allowing employers’ continued use of the after-acquired evidence defense, even solely to limit plaintiffs’ remedies, may have a chilling effect on employment discrimination litigation.133 Plaintiffs may become hesitant to file suit for fear that employers will scour their record for evidence of misconduct, and attorneys become resistant to taking on clients who do not possess spotless backgrounds.134 The after-acquired evidence defense has the potential to endorse invasive discovery practices by employers into the defendant’s background for any evidence of misdeeds on, or prior to, the job.135 This possibility has the potential to deter meritorious discrimination suits as plaintiffs fear that information regarding, for example, prior drug use, incarceration, or immigration status, may come to light.136 Additionally, allowing defendants to assert the after-acquired evidence defense shifts the focus away from the employer’s unlawful discriminatory conduct and onto the plaintiff’s character and integrity.137 After-acquired evidence places employment discrimination plaintiffs on the defensive, often forcing their attorneys to commit more time to combatting the misconduct allegations, thus taking time and resources away from the discriminatory conduct at the heart of the suit and imposing additional attorney’s fees and costs.138
The chilling effects and focus-shifting issues outlined above are particularly problematic in the context of ADA cases. As noted previously, an important function of the ADA is to provide individuals with disabilities an opportunity for legal recourse against employers who fail to comply with the provisions of the statute.139 Thus, if ADA plaintiffs fear that the defendant may find evidence of misconduct, even if it has no relation to the underlying discrimination claim, they may choose not to proceed with their legitimate disability discrimination suit, and, as a result, the employer’s violation of the ADA may continue unchecked.140 These issues will be heightened further if additional federal courts allow after-acquired evidence, bearing on the plaintiff’s status as a qualified individual, to defeat the suit in its entirety rather than just limit damages.
B. After-Acquired Evidence Defeats the Purpose of the ADA
Allowing after-acquired evidence to defeat an ADA plaintiff’s suit solely because the late-discovered information—which was unknown to the employer at the moment they acted discriminatorily—discounts the plaintiff’s status as a qualified individual, is at odds with the purpose of the ADA. According to both the text of the ADA141 and the legislative history behind the statute,142 a main purpose of the legislation was to ensure persons with disabilities were able to fully participate in American society and were on an equal playing field with those who were not disabled.143 In order to achieve these vital goals, the ADA serves both a deterrence purpose,144 to prevent further discriminatory actions by employers, and a legal recourse purpose,145 to compensate victims of discrimination. Allowing after-acquired evidence to defeat ADA suits contravenes both of those purposes.
1. Deterrence Purpose
By providing victims of disability discrimination the opportunity to obtain compensatory and punitive damages from their employer,146 the ADA works to root out, deter, and ultimately eliminate discriminatory practices.147 The theory is that employers will avoid any conduct that risks a statutory violation out of fear of having to inevitably pay a potentially high damage award.148 In particular, the addition of the punitive damage award for especially malicious violations149 highlights the deterrence purpose of the ADA, as it seeks to prevent infringement by the individual defendant as well as any similar industry-wide violation.150 However, this vital deterrence purpose is not served if an employer can escape liability by presenting evidence that, although rebuts the plaintiff’s status as a qualified individual, is wholly unrelated to the underlying discriminatory action and did not serve as motive for the unlawful conduct.
By allowing after-acquired evidence to defeat a plaintiff’s potentially valid claim of disability discrimination, the rule serves as a shield for employers, permitting them to avoid any and all liability for their wrongful conduct and to continue, undeterred, with their discriminatory employment practices.151 It opens up the possibility for employers to hire an applicant without performing a deep dive into their background. Then, once the employee with a disability requests, for instance, a reasonable accommodation, the employer may deny the request, or outright dismiss the employee. If an ADA suit is then brought in response, the employer can search extensively into the individual’s background, history, or resume for any information that may disqualify them as a qualified individual and use such information to then escape liability. Such “fishing expeditions” were an explicit concern of the Court in McKennon, but by allowing room for employers to escape liability from disability discrimination suits in qualified individual cases, some federal courts may have implicitly mandated such excursions.152
Furthermore, nearly half of all after-acquired evidence cases involve misrepresentations on employment application materials and resumes.153 Misrepresentation on employment materials is a widespread phenomenon and is an occurrence well-documented by employers.154 In light of this common practice, there is an even greater incentive for employers to, when faced with a disability discrimination suit, delve into the plaintiff’s background for any information that may show that they do not possess the requisite job-related requirements or that they cannot perform the essential functions of the position.155 Ultimately, if such evidence is found, employers may be able to escape liability, and thus can conceal their discriminatory actions, and their violations may continue unchecked.156 Additionally, since the courts are instructed to defer to the employer’s judgment in defining a job’s essential functions—for purposes of determining whether an individual is qualified under the ADA—the employer is placed in a better position to argue that the after-acquired evidence presented shows that the plaintiff does not meet the requisite job-related requirements.157
In drafting the damage provisions of the ADA, Congress aimed to incentivize discrimination victims to file more claims so that the discriminatory conduct, which historically prevented people with disabilities from participating fully in society, could be brought to light and eliminated.158 By allowing after-acquired evidence to defeat disability discrimination lawsuits, the federal courts contravene the deterrence purpose of the ADA and may inadvertently allow unlawful discrimination to proliferate.
2. Legal Recourse Purpose
In drafting the ADA, Congress also intended to provide individuals with disabilities with legal recourse in order to adequately compensate them following instances of discrimination.159 As noted, the drafters of the ADA incorporated “by reference” the enforcement provisions from Title VII of the Civil Rights Act into the ADA.160 Thus, similar to the other antidiscrimination statutes, Congress designed the remedial measures to encourage employers to evaluate their employment practices and remove any discriminatory conduct that was barring people with disabilities from employment.161 By providing disability discrimination plaintiffs the power to publicly litigate their claims in a court of law, employer non-compliance can be brought to light, and, if such non-compliance appears to be an industry-wide pattern, it can be properly remedied.162 The ability to litigate one’s claim is particularly relevant in the context of ADA violations as it has the potential to expose a lack of reasonable accommodation and widespread abuse that has historically kept persons with disabilities out of the workforce.163 Allowing after-acquired evidence to defeat a qualified individual discrimination suit fails to effectuate the legal recourse purpose as plaintiffs will have no alternative ability to vindicate their rights, and the discriminatory employer action will continue to go unchecked.164
Additionally, it has been noted that the use of after-acquired evidence by defendants increases the chance that a case will settle and that it will settle at a value lower than what it would have had the late-discovered evidence not been presented.165 Studies on the outcomes of discrimination suits have also revealed that defendant-employers appear to prevail in disability discrimination cases at much higher rates than in suits brought under other antidiscrimination statutes.166 Discrimination plaintiffs are supposedly entitled to a remedy that places them in the position they would have been had the discrimination never occurred.167 However, these settlement and litigation-outcome trends raise concerns about whether victims of disability discrimination are being adequately remedied. If after-acquired evidence is ultimately allowed to defeat potentially meritorious disability discrimination suits, such pro-defendant trends may be exacerbated, and the legal recourse purpose of the ADA further diminished. Lastly, if disability discrimination plaintiffs are pushed toward settlement, this decreases the likelihood that the employer’s alleged wrongdoing will ever be revealed publicly and thus lowers the possibility that ADA violations will be exposed and remedied.168
3. Otherwise Qualified Implications
The “otherwise qualified” or “qualified individual” prong of the ADA allows the statute to differ from the other watershed civil rights legislation, but also has the potential to worsen the outcome for disability discrimination victims facing after-acquired evidence.169 The qualified individual language partially stems from Congress’s concern that the ADA would be construed by courts to require employers to hire individuals with disabilities, even if their disabilities make it impossible for them to do the job.170 Ultimately, Congress wanted to protect employers who refuse to hire a person with a disability, not because they possess a disability, but because that disability prevents them from performing the job’s critical tasks.171
These concerns, however, are not as prevalent in after-acquired evidence cases. The inherent definition of after-acquired evidence is that it is information discovered after an adverse employment action has been taken by the employer.172 Therefore, in qualified individual cases, the late-discovered information obtained may reveal, for example, that the employee never possessed the requisite job requirements,173 or that their disability benefits revealed that they could not hold any position.174 However, it is information discovered well after the employee has begun working in the position and has faced the discriminatory employment action—in one instance, the information was discovered two years after the employee was discharged.175 Therefore, the protection intended by the qualified individual prong of the ADA has no relation to these cases as, typically, the employee has begun working, has proven they could perform the essential functions of the job—even if they did not, on paper, possess the requisite job requirements—and was ultimately discharged for a reason entirely unrelated to their status as a qualified individual. Ultimately, Congress’s fear that employers would be bound to hire applicants who truly cannot perform the functions of the job176 has no bearing on these after-acquired evidence cases. Allowing employers to escape liability by presenting unrelated and late-discovered information about the plaintiff’s status as a qualified individual will only work to block wrongdoing from coming to light and prevent discrimination victims from obtaining any recompense.177
Similar to the other antidiscrimination statutes, such as Title VII of the Civil Rights Act, the ADA makes discrimination unlawful based on a protected class status, in order to allow for equality of opportunity and the integration of those formally excluded into society at large.178 However, unlike the other antidiscrimination statutes, the ADA also promotes “distributive justice” by requiring employers to affirmatively provide reasonable accommodation to employees with disabilities.179 The inclusion of the reasonable accommodation requirement, within the definition of qualified individual,180 recognized that people with disabilities wanted to work, but were barred from doing so due to discrimination or lack of accommodation.181 The purpose of the reasonable accommodation prong was to allow for active incorporation of individuals with disabilities into the workforce.182 Therefore, allowing after-acquired evidence to defeat a reasonable accommodation lawsuit is particularly dangerous. Imagine a scenario where an employee brings a lawsuit against their employer for failure to provide reasonable accommodation. If that employer is then able to escape liability by presenting late-discovered evidence that the employee was not a qualified individual—even though that information was not known to the employer when they unlawfully denied the accommodation—that employer will have avoided having to provide an accommodation presently and in future instances.183
C. The McKennon Reasoning Applies to Qualified Individual ADA Suits
The ADA is a part of a congressional legislative scheme that includes Title VII of the Civil Rights Act, the ADEA, the National Labor Relations Act, and the Equal Pay Act of 1963, all aimed at curbing discrimination in the workplace.184 Therefore, although the Court in McKennon did not explicitly extend its holding to the ADA, it applies nonetheless.185 It is likely that the McKennon Court granted certiorari to address after-acquired evidence with all of the civil rights statutes within the antidiscrimination framework in mind.186 The Court noted that it granted certiorari to resolve the conflicting views among the various federal appeals courts on the question of after-acquired evidence187 and grounded the ADEA within a wider statutory scheme as part of a congressional effort to eradicate workplace discrimination.188 Additionally, in the years following McKennon, numerous circuit and district courts have applied the McKennon analysis in disability discrimination suits arising under the ADA, even though the Supreme Court in McKennon did not explicitly grant such an application.189
Since the courts have made clear that McKennon’s holding applies to suits brought under the ADA, the reasoning the Supreme Court supplied must similarly apply.190 Thus, after-acquired evidence cannot be used to bar recovery in ADA discrimination suits, even if information proves that the plaintiff is not a qualified individual. The ruling in McKennon stands for the idea that evidence, of which the employer was unaware and thus not motivated by when it took the discriminatory employment action, cannot be used to bar relief in employment discrimination suits.191 The Court’s reasoning, in support of this holding, is that it is the remedial relief provided by the antidiscrimination statutes that furthers the legislation’s purposes.192 If the courts allow employers to present late-discovered evidence, bearing on the plaintiff’s status as a qualified individual, to warrant dismissal of ADA suits, they would be endorsing the operation of after-acquired evidence as an absolute bar to relief. Those courts would be acting in direct contradiction to the reasoning and holding outlined in McKennon and, ultimately, the purpose of antidiscrimination statutes such as the ADA.193
III. Proposal
Since it is unlikely that the federal courts will outright ban the use of after-acquired evidence in discrimination lawsuits,194 there are other options available to limit the harm that after-acquired evidence may have on disability discrimination plaintiffs. One potential option is for courts to give greater deference to the EEOC.195 A second, although more difficult possibility, is to recognize the use of after-acquired evidence by defendants as potential retaliation, thus giving plaintiffs an alternative option to vindicate their rights.196
A. Broader Deference to the EEOC
The EEOC is the government agency tasked with enforcement of Title I of the ADA and often promulgates enforcement guidance documents that are intended to provide clarity to employers, employees, and the public at large.197 The EEOC laid out a guidance document following the McKennon ruling, and, although the guidelines do not explicitly mention the effects of McKennon on qualified individual cases, they do note that the McKennon holding applies to the ADA and gives guidance for determining relief.198 The Commission noted that the McKennon Court endorsed the EEOC’s previously-held position that a defendant employer must still remain liable for any discriminatory acts regardless of whether the employer discovers employee misconduct.199
Additionally, in Anthony v. Trax International Corp., in a brief written for the plaintiff-appellant, the EEOC laid out specific reasons why the after-acquired evidence—showing that the plaintiff was not a qualified individual—should not be used to defeat an ADA suit.200 The EEOC argued that allowing after-acquired evidence to defeat the claim would not only violate the McKennon ruling, but would also let discriminatory employers off the hook without having to reform their practices.201 In sum, the EEOC had endorsed a position that would prevent after-acquired evidence from being used to defeat a disability claim, regardless of whether the plaintiff is ultimately considered qualified or not.202 However, courts vary on how much weight must be given to the EEOC’s interpretive guidelines regarding the ADA.203 In light of their long-standing opinion that violators of the antidiscrimination statutes must be held liable—regardless of late-discovered evidence of employee misconduct—and the Commission’s vital work effectuating the provisions of the ADA, it is only natural that the courts defer in their opinion regarding after-acquired evidence to the EEOC.204
B. Viewing the Use of After-Acquired Evidence as Retaliation
Both the McKennon Court as well as the EEOC expressed concern that allowing defendant-employers the opportunity to present after-acquired evidence would bless extensive digging into the plaintiff’s background.205 One way to prevent such “fishing expeditions” may be to allow plaintiffs the opportunity to bring retaliation suits against such offending employers.206 Additionally, even if the court allows the after-acquired evidence to defeat the plaintiff’s disability discrimination suit, they still retain some opportunity for legal recourse.207
In Burlington Northern, the Supreme Court held that an employee can bring a retaliation suit against an employer for actions taken that are not directly related to employment or that cause harm outside the workplace.208 Therefore, anti-retaliation provisions in the non-discrimination statutes are not limited to actions or harms related solely to the workplace.209 According to Burlington Northern, the purpose of an anti-retaliation provision is to ensure that employers cannot obstruct the enforcement of the broad anti-discriminatory aims of civil rights statutes such as the ADA and Title VII of the Civil Rights Act.210 Therefore, allowing retaliation suits by disability discrimination plaintiffs facing dismissal in light of defendants’ after-acquired evidence may serve to uphold the objectives of the ADA.
Furthermore, allowing disability discrimination plaintiffs to bring retaliation claims may even discourage the highly invasive discovery practices that the McKennon Court and the EEOC were so wary of. Defendants may fear that the courts will deem such discovery procedures as overzealous and beyond the scope of ordinary discovery, thus opening them up to retaliation suits and further litigation.211 There has not yet been a case where the use of after-acquired evidence as a defense has been found to constitute illegal retaliation.212 However, allowing ADA plaintiffs this opportunity may provide disability discrimination victims greater opportunities for recourse, particularly in instances where after-acquired evidence has prevented them from proceeding with their disability discrimination complaint.
Conclusion
People with disabilities continue to face extensive barriers to access to meaningful employment and, over thirty years since the passage of the ADA, are still nervous about disclosing their disabilities for fear of discrimination.213 These fears are not unfounded as evidence shows that employers today remain hesitant to hire workers with disabilities due to deeply rooted prejudice and unfounded concerns over the cost of reasonable accommodation or fear of legal liability.214 Therefore, in order for the aims of the ADA to finally be realized, disability discrimination victims must be allowed access to the courts in order to vindicate their rights against discriminatory employers. The federal courts should no longer allow defendant-employers to assert after-acquired evidence, bearing on a plaintiff-employee’s status as a qualified individual, to defeat a disability discrimination suit. By granting dismissal of such cases, particularly at the summary judgment phase, the merits of the underlying discrimination suit are never reached, and not only does the employer escape liability, but the principal goals of the ADA are also contravened, ultimately leaving the discrimination victim without recourse.