Donald Livingston Comments on “After-Acquired” Evidence in Employment Discrimination Cases

Donald Livingston, a partner in Akin Gump’s labor and employment practice, is quoted in the Law360 article “Post-Firing Evidence Can Be A Potent Limit On Bias Damages,” regarding a recent federal appeals court ruling that said that evidence discovered after an executive has been fired can be used to confirm a nondiscriminatory reason for dismissing the individual. The article describes this “after-acquired” evidence as a “potent limitation” on damages in employment discrimination lawsuits.

Livingston, a former general counsel at the Equal Employment Opportunity Commission, said the Supreme Court’s 1995 decision in McKennon v. Nashville Banner Publishing Co. marked a turning point in how often “after-acquired” evidence issues came up in discrimination cases. In that ruling, the Court maintained that such evidence could be considered when determining damages, even though it cannot entirely shield an employer from being liable for discrimination.

Livingston noted that the ruling restricts the use of “after-acquired” evidence, in most instances, to the damages phase of a case. He added, “If the employer can show that they would have discharged the individual at a particular point in time, after the concealment became known, then that could cut off damages.”

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