Business 8th Edition by Marianne Jennings

Exercise 35

Lying Is Not a Defense for Discrimination
FACTS
For 30 years, Christine McKennon (petitioner) worked for Nashville Banner Publishing Company (respondent) (Banner), but she was terminated as part of a work reduction plan. She was 62 years old at the time of her termination. Ms. McKennon filed suit, alleging her termination was a violation of the Age Discrimination in Employment Act (ADEA).
During Ms. McKennon's deposition, she testified that during her final year of employment, she had copied several confidential documents bearing upon the company's financial condition. She had access to these records as secretary to Banner's comptroller. Ms. McKennon took the copies home and showed them to her husband. Her motivation, she averred, was apprehension that she was about to be fired because of her age. When she became concerned about her job, she removed and copied the documents for "insurance" and "protection." A few days after these deposition disclosures, Banner sent Ms. McKennon a letter declaring that removal and copying of the records was in violation of her job responsibilities and advised her (again) that she was terminated. Banner's letter also recited that had it known of Ms. McKennon's misconduct, it would have discharged her at once for that reason.
Banner conceded its discrimination in district court, which granted summary judgment for Banner on grounds that Ms. McKennon's misconduct was a defense. The court of appeals affirmed, and
Ms. McKennon appealed.
JUDICIAL OPINION
KENNEDY, Justice
We shall assume that the sole reason for McKennon's initial discharge was her age, a discharge violative of the ADEA. Our further premise is that the misconduct revealed by the deposition was so grave that McKennon's immediate discharge would have followed its disclosure in any event. We do question the legal conclusion reached by those courts that after-acquired evidence of wrongdoing which would have resulted in discharge bars employees from any relief under the ADEA. That ruling is incorrect.
The ADEA and Title VII share common substantive features and also a common purpose: "the elimination of discrimination in the workplace." Congress designed the remedial measures in these statutes to serve as a "spur or catalyst" to cause employers "to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges" of discrimination. The ADEA, in keeping with these purposes, contains a vital element found in both Title VII and the Fair Labor Standards Act: it grants an injured employee a right of action to obtain the authorized relief.
The objectives of the ADEA are furthered when even a single employee establishes that an employer has discriminated against him or her. The disclosure through litigation of incidents or practices which violate national policies respecting nondiscrimination in the work force is itself important, for the occurrence of violations may disclose patterns of noncompliance resulting from a misappreciation of the Act's operation or entrenched resistance to its commands, either of which can be of industry-wide significance. The efficacy of its enforcement mechanisms becomes one measure of the success of the Act.
As we have said, the case comes to us on the express assumption that an unlawful motive was the sole basis for the firing. McKennon's misconduct was not discovered until after she had been fired. The employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason. Mixed motive cases are inapposite here, except to the important extent they underscore the necessity of determining the employer's motives in ordering the discharge, an essential element in determining whether the employer violated the federal antidiscrimination law. As we have observed, "proving that the same decision would have been justified… is not the same as proving that the same decision would have been made."
The ADEA, like Title VII, is not a general regulation of the workplace but a law which prohibits discrimination. The statute does not constrain employers from exercising significant other prerogatives and discretions in the course of the hiring, promoting, and discharging of their employees. In determining appropriate remedial action, the employee's wrongdoing becomes relevant not to punish the employee, or out of concern "for the relative moral worth of the parties," but to take due account of the lawful prerogatives of the employer in the usual course of its business and the corresponding equities that it has arising from the employee's wrongdoing.
The proper boundaries of remedial relief in the general class of cases where, after termination, it is discovered that the employee has engaged in wrongdoing must be addressed by the judicial system in the ordinary course of further decisions, for the factual permutations and the equitable considerations they raise will vary from case to case. We do conclude that here, and as a general rule in cases of this type, neither reinstatement nor front pay is an appropriate remedy. It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds.
Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge. The concern that employers might as a routine matter undertake extensive discovery into an employee's background or performance on the job to resist claims under the Act is not an insubstantial one, but we think the authority of the courts to award attorney's fees, mandated under the statute, 29 U.S.C. §§ 216(b), 626(b), and in appropriate cases to invoke the provisions of Rule 11 of the Federal Rules of Civil Procedure will deter most abuses.
The judgment is reversed.
Is reinstatement a remedy?