Permitting After-Acquired Evidence of Employee Qualifications Perpetuating a McKennon Distinction Without a Difference.

• Author: Miller, Katherine E.

"A bove all, the [Americans with Disabilities Act] is about one clear and forth-right message: That discrimination of any kind has no place in America.... Discrimination no longer has a legal leg to stand on." (1)

1. INTRODUCTION

   Despite legislative and societal condemnation, employment discrimination has found several legal legs to stand on, both historically and in the modern era. (2) One such mechanism the Ninth Circuit recently revived, seemingly contradictory to Supreme Court precedent, is the use of after-acquired evidence to defeat an employee's disability discrimination claim. (3) After-acquired evidence is information unknown to an employer at the time it takes adverse employment action against an employee that the employer subsequently learns during the discovery phase of litigation. (4) Where the discovered information includes objectively terminable conduct, the employer may then move for summary judgment to avoid liability or, at minimum, argue for reduced damages. (5) In 1995, however, the Supreme Court of the United States held in McKennon v. Nashville Banner Publishing Co. that an employer cannot use after-acquired evidence of an employee's on-the-job misconduct as a supervening termination reason to defeat an employment discrimination claim. (6)

   While the Court in McKennon did not explicitly reach other factual scenarios beyond the on-the-job misconduct presented under the Age Discrimination in Employment Act (ADEA), it barred use of after-acquired evidence at the liability stage, invoking a broad national policy to deter discrimination. (7) Nevertheless, various circuit courts have since carved out or maintained several distinctions to avoid the McKennon limitation on after-acquired evidence in employment discrimination litigation. (8)

   For example, under the Americans with Disabilities Act (ADA), an employee asserting an employment discrimination claim must be a qualified individual as defined by the Act to establish standing. (9) Similarly, employees must prove qualification as a prima facie element of employment discrimination claims brought under Title VII of the Civil Rights Act of 1964 (Title VII) or the ADEA. (10) Some courts have employed judicial estoppel to permit after-acquired evidence when employees assert their qualification for the contested position but have represented a total inability to work elsewhere, such as before the Social Security Administration (SSA). (11) Other courts allowed after-acquired evidence of application or resume fraud to show that the employee was never qualified for employment, thus destroying the discrimination claim. (12)

   Judicial estoppel and the qualification-standing defense predate McKennon, and circuits have split over their continued viability in the wake of that decision. (13) The Ninth Circuit recently demonstrated that these two McKennon exception theories are alive and well, merging them in its reasoning in Anthony v. TRAX International Corp. (14) In response to Anthony's ADA claim, the Ninth Circuit allowed TRAX's qualification-standing defense using after-acquired evidence of Anthony's application fraud. (15) The Anthony court buttressed its reasoning with judicial estoppel cases from the Third and Fifth Circuits. (16) The Ninth Circuit panel declined to apply McKennon, stating that while the Supreme Court barred using after-acquired evidence to establish a supervening justification for a wrongful employment action, such evidence may still be used to show that McKennon could not establish the qualification element for a prima facie case of discrimination. (17)

   The Ninth Circuit's reasoning erroneously equated the otherwise distinct theories of judicial estoppel and qualification-standing while also ignoring the broad policy objectives of the ADA that the McKennon Court highlighted. (18) This Note begins by exploring the relevance of an employee's qualifications to Title VII, ADEA, Rehabilitation Act, and ADA claims; as well as how the EEOC has interpreted the ADA qualification requirement. (19) Next, it explains the history of the after-acquired evidence doctrine and discusses how courts continue to allow after-acquired evidence to defeat employment discrimination claims, notwithstanding the McKennon Court's holding. (20) Based on those assessments, this Note argues that the Ninth Circuit's qualification-standing exception allowing after-acquired evidence to foreclose employer liability contravenes the intent of the ADA and the legal reasoning of McKennon. (21) Given the uniformity of purpose across the various federal antidiscrimination statutes, this Note concludes that the qualification-standing exception is equally inapplicable to other antidiscrimination claims beyond the ADA, but plaintiffs and the EEOC must focus their arguments on traditional elements of statutory interpretation to prevail. (22)

2. HISTORY

   1. Employee Qualification as a Requirement in Antidiscrimination Claims

      1. The Civil Rights Act of1964 and the Age Discrimination in Employment Act

         Congress's uniform intent in enacting Title VII, the ADA, and the ADEA was, quite simply, to eradicate discrimination in the workplace. (23) To the extent that judicial opinions undermined this sweeping mandate, Congress has taken steps to course correct and reaffirm its original intent. (24) The House Committee on Education and Labor, for example, explained its recommendation to adopt the Civil Rights Act of 1991 by citing the following statement with approval:

         [I]t is important to remember the dual purpose of private enforcement of Title VII. On the one hand, the object is to make whole the individual victims of unlawful discrimination .... But this is only part of it. The individual Title VII litigant acts as a "private attorney general" to vindicate the precious rights secured by that statute. It is in the interest of American society as a whole to assure that equality of opportunity in the work place is not polluted by unlawful discrimination. Even the smallest victory advances that interest. (25)

         Despite this broad, common objective, the text of the various federal civil rights statutes differs, and neither Title VII nor the ADEA contain the ADA's explicit individual qualification requirement. (26) The concept of qualification developed from the Court's earliest interpretations of Title VII and arose from overt concerns that antidiscrimination statutes would erode employer discretion to hire only qualified individuals. (27) The Court stated that antidiscrimination laws ensured qualifications would be the controlling factor in employment determinations and not impermissible characteristics such as race, age, or sex. (28)

         The Court soon developed an evidentiary-burden-shifting framework for Title VII claims, requiring that an employee's prima facie showing include, among other things, qualification for the disputed job opening. (29) Now generally referred to as the McDonnell Douglas evidentiary framework, it permits an inference of discrimination when a plaintiff from a protected class shows that they applied to, were qualified for, and were rejected from an open position that otherwise remained open to additional applicants. (30) The Court later explained that the prima facie case serves to eliminate other common, nondiscriminatory reasons for the alleged adverse action. (31) Once the employer has proffered a legitimate, nondiscriminatory reason at the framework's second stage, however, the prima facie elements themselves are no longer relevant, and a court's focus shifts to deciding the ultimate issue of intentional discrimination. (32) With respect to the ADEA, the Supreme Court has never ruled on whether the McDonnell Douglas evidentiary framework is appropriate, but numerous federal district and appellate courts apply McDonnell Douglas and its attendant qualification requirement to ADEA claims. (33)

      2. The Rehabilitation Act of 1973

         Title VII did not include disability as a protected class, but Congress enacted disability antidiscrimination legislation with the Rehabilitation Act of 1973 (Rehabilitation Act). (34) The Rehabilitation Act applies only to disability discrimination by federal agencies, federal contractors, and recipients of federal financial assistance. (35) Unlike Title VII or the ADEA, protection under the Rehabilitation Act is limited to a qualified individual with a disability. (36) In 1978, the Department of Health, Education, and Welfare promulgated regulations defining a qualified handicapped person as someone "who, with reasonable accommodation, can perform the essential functions of the job in question." (37) In Southeastern Community College v. Davis, (38) the Supreme Court looked to this definition to support its interpretation that a qualified individual must meet all program requirements notwithstanding a disability. (39) Under the Rehabilitation Act, even where a qualified individual with a disability cannot perform the job's essential functions, the employer must determine whether reasonable accommodations are available to enable that individual to perform those functions. (40) As with Title VII and the ADEA, courts also apply the McDonnell Douglas burden-shifting framework to employment discrimination cases brought under the Rehabilitation Act. (41)

      3. The Americans with Disabilities Act of 1990

         Congress included the Rehabilitation Act's qualification requirement in the ADA to affirm employers' discretionary autonomy to execute hiring decisions based on permissible qualifications, although such language does not similarly appear in Title VII or the ADEA. (42) Congress also tasked the EEOC with enacting regulations to interpret and enforce the ADA. (43) While the ADA defines a qualified individual as someone who can perform the essential functions of the employment position, the EEOC promulgated further guidance establishing a two-part qualification test. (44) First, qualified individuals must possess the necessary skills, experience...