The Use of the After-acquired Evidence Doctrine as a Frontline Defense in Employment Cases

• Jurisdiction: South Carolina,United States,Federal
• Citation: Vol. 34 No. 4-1 Pg. 24
• Pages: 24
• Publication year: 2023

The Use of the After-Acquired Evidence Doctrine as a Frontline Defense in Employment Cases Vol. 34 Issue 4 Pg. 24 South Carolina Bar Journal January, 2023

By Aaron Wallace.

One defense of particular interest to employers in employment cases is the after-acquired evidence doctrine. Although the expansiveness of this defense has been challenged, it is alive and well in South Carolina. Commonly applied in Title VII employment cases, as of 1994, the South Carolina Supreme Court extended its use as a defense to both whistleblower claims and to breach of contract actions based on employment handbooks. Baber v. Greenville County, 327 S.C. 31, 488 S.E.2d 314 (1997). The Court also suggested that it may have broader applicability in employment cases o in general in South Carolina. The usefulness of the after-acquired M evidence doctrine as a defense for embattled employers is heavily contingent on the facts and circumstances of each case. This article discusses the extent of that doctrine as a defense in employment cases. The strategic use of this doctrine is a powerful tool for employers in this state.

The after-acquired evidence doctrine refers to the discovery by an employer of information which would have justified a lawful termination of - or refusal to hire - an employee after the initiation of an action against the employer. In general, this doctrine affects the degree of damages that can be awarded to the employee as a result of their claim. For example, if an employee lies about their qualifications on their resume, an employer can potentially use this evidence as part of its defense as misrepresentation is a potentially terminable offense.

Before delving into the applicability of the doctrine in the context of South Carolina jurisprudence, it is helpful to discuss its significance at the federal level. Before 1995, there was a split among jurisdictions regarding the extent of the doctrine as a defense in federal employment cases. For example, in Summers v. State Farm Mutual Automobile Insurance Co., 864 F.2d 700 (10^th Cir. 1988), the Tenth Circuit Court of Appeals recognized after-acquired evidence as a complete bar to recovery in a case that dealt with employee falsification of records. On the other hand, the Eleventh Circuit ruled that after-acquired evidence of an employee's fraud in a job application could not bar her relief. Wallace v. Dunn Construction Co., 968 F.2d 1174 (11^th Cir. 1992), vacated pending rehearing en banc, 32 F.3d 1489 (1994).

This split was resolved in 1995 with the case McKennon v. Nashville Banner Publishing Co...