831.46 After-acquired evidence

After-acquired evidence of a legitimate basis for an employee’s termination cannot shield the employer from liability for its discriminatory conduct. However, it may be used in fashioning the remedy. As a general rule, neither reinstatement nor front pay is an appropriate remedy in such cases, as it would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event upon lawful grounds. The beginning point in the formulation of a remedy should be calculation of back pay from the date of the unlawful discharge to the date the new information was discovered. However, the Respondent must first establish that the wrongdoing was of such severity that the employee would, in fact, have been terminated on those grounds alone if the employer had known of it at the time of the discharge. In this case, the Complainant established that the Respondent discriminated against her on the basis of conviction record when it terminated her employment. However, the Respondent later learned that the Complainant had falsely reported that she had never been convicted of any offense. The Respondent considers falsification of documents in the application process to be cause for immediate discharge. Accordingly, the Complainant was not entitled to reinstatement; however, she was entitled to back pay from the date of her discharge until the date of the hearing. McKnight v. Silver Spring Health & Rehab. (LIRC, 02/05/02).

The employer attempted to limit its liability for back pay at a damage hearing by arguing that if it had not unlawfully discharged the Complainant when it did, it would have conducted an investigation of the Complainant's conduct which may have uncovered a legitimate reason for discharging the Complainant. Because the Respondent was not actually in possession of any after-acquired evidence of misconduct, it was appropriate to prohibit the Respondent from presenting testimony about any such investigation and what it might have uncovered. Schneider v. Stoughton Trailers (LIRC, 02/24/95).