1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-1-1994

Mardell v. Harleysville Life Ins. Co.

Precedential or Non-Precedential:

Docket 91-0149

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________________ 

No. 93-3258 

_____________________ 

NANCY MARDELL, 

 Appellant

v. 

HARLEYSVILLE LIFE INSURANCE COMPANY, 

a Pennsylvania Corporation 

____________________________________________________________ 

On Appeal From the United States District Court 

for the Western District of Pennsylvania 

(D.C. Civil No. 91-01493) 

_____________________________________________________________ 

Argued: December 9, 1993 

Before: BECKER, NYGAARD, Circuit Judges, 

and YOHN, District Judge0

(Filed August 2, 1994) 

 JOEL S. SANSONE (Argued) 

 KELLY L. SCANLON 

 Sansone & Associates 

 220 Lawyers Building 

 428 Forbes Avenue 

 Pittsburgh, PA 15219 

 Attorneys for Appellant

 ROSLYN M. LITMAN (Argued) 

 MARTHA S. HELMREICH 

 Litman Litman Harris Brown 

 and Watzman, P.C. 

 3600 One Oxford Centre 

 Pittsburgh, PA 15219 

 

0The Honorable William H. Yohn, Jr., United States District Judge 

for the Eastern District of Pennsylvania, sitting by designation. 
2 

 Attorneys for Appellee

 JAMES R. NEELY, JR. 

 Deputy General Counsel 

 GWENDOLYN YOUNG REAMS 

 Associate General Counsel 

 LORRAINE C. DAVIS 

 Assistant General Counsel 

 BARBARA L. SLOAN (Argued) 

 Equal Employment Opportunity 

 Commission 

 Office of General Counsel 

 1801 L Street, NW 

 Washington, DC 20507 

 Attorneys for Amicus 

Curiae in Support of 

Appellant

________________________________________ 

OPINION OF THE COURT

________________________________________ 

BECKER, Circuit Judge. 

 Nancy Mardell appeals from the grant of summary 

judgment for defendant Harleysville Life Insurance Company 

("Harleysville") by the District Court for the Western District 

of Pennsylvania in an employment discrimination suit alleging age 

and gender discrimination. Mardell brought several claims 

pursuant to Title VII of the Civil Rights Act of 1964 ("Title 

VII"), 42 U.S.C.A. §§ 2000e to 2000e-17 (1981 & Supp. 1994), the 

Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.A. §§ 

621-34 (1985 & Supp. 1994), and the Pennsylvania Human Relations 

Act, 43 PA. CONS. STAT. ANN. §§ 951-63 (1991 & Supp. 1994). The 

district court relied upon the rule pioneered by the Tenth 
3 

Circuit Court of Appeals in Summers v. State Farm Mutual 

Automobile Insurance Co., 864 F.2d 700 (10th Cir. 1988) to hold 

that Harleysville's "after-acquired evidence" of Mardell's 

alleged résumé fraud provided a complete defense to Mardell's 

causes of action. "After-acquired evidence" in an employment 

discrimination case denotes evidence of the employee's or 

applicant's misconduct or dishonesty which the employer did not 

know about at the time it acted adversely to the employee or 

applicant, but which it discovered at some point prior to or, 

more typically, during, subsequent legal proceedings; the 

employer then tries to capitalize on that evidence to diminish or 

preclude entirely its liability for otherwise unlawful employment 

discrimination. 

 We reject the Summers rule in favor of one 

circumscribing the use of after-acquired evidence to the remedies 

phase of an employment discrimination suit brought pursuant to 

Title VII or ADEA.0 We will therefore reverse the district 

court's order granting summary judgment to Harleysville, and 

 

0Throughout the following discussion we will generally treat 

claims arising under Title VII and ADEA similarly insofar as no 

party has given us reason to distinguish between them for purposes of the principal issue before us, and we have thought of no 

reason for doing so ourselves. See, e.g., Trans World Airlines, 

Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 621 (1985) 

(applying Title VII precedent to ADEA because "the substantive 

[(but not the procedural or remedial)] provisions of ADEA `were 

derived in haec verba from Title VII'" (quoting Lorillard, Div. 

of Loew's Theatres, Inc. v. Pons, 434 U.S. 575, 584, 98 S. Ct. 

866, 872 (1978)); Armbruster v. Unisys Corp., No. 93-1333, Mem. 

op. at 20 n.10 (July ??, 1994); Miller v. Cigna Corp., No. 93-

1773, 1994 WL 283269, at *4, *12 n.7 (June 28, 1994); Smithers v. 

Bailar, 629 F.2d 892, 894-95 (3d Cir. 1980) (applying Title VII's 

framework to an ADEA claim). 
4 

remand the case for further proceedings consistent with this 

opinion. 

I. FACTS AND PROCEDURAL HISTORY0

 Harleysville hired Mardell as a Branch Life Manager in 

February 1988 to manage insurance agents.0 Mardell appears from 

the record to have been an accomplished life insurance agent. (A 

57.) Before accepting the position with Harleysville, Mardell had 

been employed by Prudential Life Insurance Company ("Prudential") 

for eleven years. (A 58, 66, 68.) William Shelow, who was being 

promoted out of the position at Harleysville for which Mardell 

would be hired, had approached Mardell at Prudential about 

replacing him in his soon-to-be vacated position. (A 69.) 

Shelow was familiar with Mardell's work at Prudential and felt 

that she would excel as a Life Manager for Harleysville. (A 70.) 

 In December 1989, Mardell became the first Harleysville 

employee ever to be placed on probation. William Forloine, 

 

0For purposes of Harleysville's summary judgment motion, we view 

the facts in the light most advantageous to Mardell, and resolve 

all disputed issues of fact in her favor. 

 Inasmuch as some of the facts pertaining to Mardell's 

prima facie case of discrimination and to the immateriality of 

her misrepresentations are drawn from portions of Mardell's and 

others' depositions that Mardell did not make part of the record 

in the district court but submitted in her appendix to her brief 

to this Court, we as a court of review may not consider them for 

substantive purposes. See FED. R. APP. P. 10(a), 30(a); Jaconski 

v. Avisun Corp., 359 F.2d 931, 936 & n.11 (3d Cir. 1966); Reed v. 

Amax Coal Co., 971 F.2d 1295, 1299 n.3 (7th Cir. 1992). We 

mention that testimony just as informative background to flesh 

out the particulars of the dispute; we do not consider it on the 

merits. 

0During Mardell's tenure the job title was reclassified as a 

Regional Director. 
5 

Mardell's direct supervisor and Harleysville's senior vicepresident of marketing and sales, avowedly effected this action 

for poor performance, even though at the time he imposed the 

probation Mardell's work was improving and she had surpassed the 

yearly goal he had set for her (A 76-78; SA 94, 99, 165-66). The 

terms of probation required Mardell to meet or exceed her quota 

every month at pain of dismissal, a requirement not imposed on 

any of her male peers or supervisors and one which set a standard 

that most of Harleysville's managers commonly failed to fulfill 

(A 76-77, 80, 133-34; SA 166). 

 In February 1990, Harleysville discharged Mardell, who 

then was 52 years old. (A 15, 59.) Four months later 

Harleysville hired a 40 year old male to replace her. (A 131-

32.) Harleysville attributed its termination decision to 

Mardell's poor work performance. Specifically, Harleysville 

contends that during Mardell's tenure, sales declined in her 

region, as did the number of independent insurance agents with 

whom she maintained ongoing contact. The company also faulted 

her for improperly implementing its new marketing plan, failing 

to learn to use its new computer system effectively, making poor 

presentations, and being unable to work suitably with some coworkers and outside agents (SA 164-66). 

 Mardell disputes Harleysville's asserted reasons for 

its decision to discharge her, contending instead that gender 

and/or age discrimation was the cause. Mardell combined the 

aforementioned circumstantial evidence of disparate treatment 

(having been the only person placed on probation and subjected to 
6 

a quota, and having been replaced by a younger man) with direct 

evidence of her supervisor's comments and attitudes indicative of 

sex and/or age bias. She testified that Forloine had told her 

that as a female he had higher expectations of her; that she 

"wasn't one of the boys" and "couldn't be a good old boy;" that 

he did not think her position "was a job for a woman;" and that 

many of her agents would think of her "as a wife." She testified 

further that once he had accused her, without foundation, of 

missing work because she "just wanted to stay home and watch the 

soaps," and that she had become aware of a meeting before all the 

company's vice presidents and regional directors held after her 

termination at which he allegedly stated that he "would never 

have another female regional director." (A 71, 73-75.) She 

added that he had frequently mentioned her age and that he had 

told her once that she "should be home playing with [her] 

grandchildren." (A 73.) 

 During discovery in the instant case, Harleysville 

unearthed several instances of employment application and résumé 

misrepresentation committed by Mardell. First, Mardell 

represented that she had obtained a Bachelor of Science degree 

from the University of Pittsburgh, whereas in fact the university 

had never issued a diploma to her: the university's records 

indicate that she has yet to complete all her work in two related 

courses required for her degree. (A 82-84.) Mardell attributed 

her misrepresentation to a mistaken belief that she had earned a 

Bachelor of Science degree. She explained that she had belatedly 

completed and submitted all required work for those two courses 
7 

and had been informed by her professor that he would file a grade 

change report, but that for some unknown reason the university's 

official records never credited the supposed report. (A 84, 96-

100.) Notably, Harleysville apparently did not consider the 

possession of a college degree a prerequisite to employment as a 

Branch Life Manager, and was prepared to hire the "mental 

equivalent" of a college graduate. (A 123.) 

 Second, Harleysville learned that Mardell had also 

misrepresented her professional experience on both her employment 

application and résumé. Mardell had listed in the "employment 

history" section of the application form and the "professional 

experience" section of her résumé that she had served as a "writer-interviewer" at a local hospital, as a therapist at a mental 

health center, and as a manager and public relations director at 

a hotel. (A 58.) Although Mardell had performed most of those 

tasks as she described them on those documents (A 60-64, 67-68, 

84-90, 104-05), in both documents she had (at a few points 

greatly) exaggerated some of her specific duties (A 63, 67-68, 

104; SA 131-32); misrepresented that the hospital and mental 

health care center positions were remunerated (in fact she took 

them on as unpaid field course work to earn college credit) (A 

61-62, 85, 89-90); and misstated the dates she had performed 

those activities (A 58, 90; SA 121, 145). 

 Buoyed by its admittedly post-termination discoveries, 

Harleysville moved for summary judgment. It attached to its 

motion affidavits by Glyn Mangum, the vice-president of sales who 

had made the decision to hire Mardell, and Forloine. Mangum 
8 

averred that he had relied on Mardell's application and résumé 

when considering her for the Branch Life Manager position and 

that, had he known of her misrepresentations, he would not have 

hired her. (SA 84-85, 87.) Forloine averred that he had 

considered Mardell's alleged college degree to be a "plus" when 

he interviewed her for the position; that, had he known of her 

misrepresentations at the time of her interview, he would have 

"strongly recommended that she not be hired;" and that, had he at 

any time apprehended her misrepresentations, he would have, 

consistent with Harleysville's policy as declared by the 

employment application form Mardell had completed, "terminated 

her immediately." He added that, in context of what Harleysville 

now knows to be true about Mardell, it would not voluntarily 

reemploy her (SA 95, 99). 

 Basing its summary judgment motion on the afteracquired evidence doctrine, Harleysville assumed arguendo that it 

had impermissibly discriminated against Mardell, but essentially 

contested Mardell's standing to sue and, in the alternative, 

questioned whether she had realized an injury (SA 61-71). On 

April 27, 1993, the district court entered its Memorandum and 

Order granting Harleysville's motion (A 5). In the process, it 

applied a variant of the Summers rationale adapted to résumé 

fraud cases and held that, because of her fraud in gaining her 

employment, Mardell had suffered no legally cognizable injury 

even if Harleysville had willfully discriminated against her on 

the basis of her age and/or sex. Given that disposition, the 

court did not reach the question whether Mardell had made out a 
9 

prima facie case of sex and/or age discrimination. This appeal 

followed (A 5).0

II. THE RELEVANT LEGAL BACKGROUND

A. General Background

 Experience with the federal employment discrimination 

laws has culminated in the division of disparate treatment suits 

into three classes: pure discrimination, pretext, and mixedmotives cases.0 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

93 S. Ct. 1817 (1973), as embellished by Texas Department of 

Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 

(1981) and St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742 

(1993), establishes a flexible three-part model to allocate the 

shifting burdens of production in the first two classes of 

individual disparate treatment cases (pure discrimination and 

pretext). Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 

 

0We exercise plenary review over the district court's grant of 

summary judgment, and employ the same standard applicable in the 

district court. Davis v. Portline Transportes Maritime 

Internacional, 16 F.3d 532, 536 (3d Cir. 1994). We affirm a 

grant of summary judgment if "`there is no genuine issue as to 

any material fact and . . . the moving party is entitled to 

judgment as a matter of law.'" Id. at 536 n.3 (quoting FED. R.

CIV. P. 56(c)). 

 The facts of this case transpired before the effective 

date of the Civil Rights Act of 1991 (the "1991 Act"), Pub. L. 

No. 101-166, 105 Stat. 1075 (1991). Hence, the substantive and 

remedial changes made by the 1991 Act do not apply to this case, 

see Landgraf v. USI Film Prods., 114 S. Ct. 1483, 1505-06 (1994), 

but occasionally we will make references to them and the 

accompanying legislative history because that material is 

generally informative. 

0For purposes of this opinion, we ignore the disparate impact 

theory of employer liability. 
10 

1775 (1989) supplies the procedure for proving intentional 

discrimination in mixed-motives cases. Numerous opinions of this 

Court have explained the evidentiary regimes that the McDonnell 

Douglas/Burdine/Hicks line of cases and Price Waterhouse have 

established, but for the benefit of the untutored reader we 

summarize them in the margin.0

 

0In a case of failure to hire or promote, the plaintiff first 

must carry the initial burden under the statute of 

establishing a prima facie case of [unlawful] 

discrimination. This may be done by showing (i) that he 

belongs to a [protected category]; (ii) that he applied 

and was qualified for a job for which the employer was 

seeking applicants; (iii) that, despite his 

qualifications, he was rejected; and (iv) that, after 

his rejection, the position remained open and the 

employer continued to seek applicants from persons of 

complainant's qualifications. 

McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. If the 

plaintiff succeeds, the burden of production transfers to the 

defendant to "articulate some legitimate, nondiscriminatory 

reason for the employee's rejection." Id. In the unlikely event 

that the employer at this juncture remains silent, the case falls 

within the set of "pure discrimination" cases and "the court must 

enter judgment for the plaintiff." Burdine, 450 U.S. at 254, 101 

S. Ct. at 1094. 

 If the defendant does introduce into evidence a 

legitimate reason for its actions, the case becomes a "pretext" 

case. In that event the employer need not prove that the 

tendered reason actually motivated its behavior, as throughout 

this burden-shifting paradigm the ultimate burden of proving 

intentional discrimination rests at all times with the plaintiff. 

See id. at 253, 254, 256, 101 S. Ct. at 1093, 1094, 1095. Once 

the employer answers its relatively light burden by articulating 

a legitimate reason for the unfavorable employment decision, the 

burden of production rebounds to the plaintiff, who must now show 

by a preponderance of the evidence that the employer's explanation is pretextual. 

 To accomplish this, the plaintiff must convince the 

factfinder "both that the reason was false, and that 

discrimination was the real reason." Hicks, 113 S. Ct. at 2752; 

see id. at 2754 ("It is not 
11 

 

yenough . . . to disbelieve the employer; the factfinder must 

believe the plaintiff's explanation of intentional discrimination." (emphasis in original)). In other words, since the 

plaintiff's making out a prima facie case only shifts the burden 

of production to the employer, the employer need only articulate 

some legitimate reason for its action to meet the plaintiff's 

serve. The factfinder's rejection of that proffered legitimate 

reason permits, but does not compel, a verdict for the plaintiff. 

See Hicks, 113 S. Ct. at 2749. To prevail, the plaintiff must 

ultimately prove not that the illegitimate factor was the sole 

reason for the decision, but that the illegitimate factor was a 

determinative factor of the employment decision, that is, that 

but for the protected characteristic, the plaintiff would have 

been, for example, hired or promoted. See Hazen Paper Co. v. 

Biggins, 113 S. Ct. 1701 (1993) (ADEA) (holding that "a disparate 

treatment claim cannot succeed unless the employee's protected 

trait actually played a role in [the decisionmaking] process and 

had a determinative influence on the outcome"). 

 In Price Waterhouse, the Supreme Court borrowed the 

mixed-motives standard applied originally in a mixed-motives 

constitutional tort case, Mt. Healthy City Sch. Dist. Bd. of 

Educ. v. Doyle, 429 U.S. 274, 97 S. Ct. 568 (1977), and adapted 

it for mixed-motives cases under Title VII. See Price 

Waterhouse, 490 U.S. at 248-50, 109 S. Ct. at 1789-90 (plurality); id. at 258-59, 109 S. Ct. at 1795 (White, J., concurring); 

cf. id. at 277-78, 109 S. Ct. at 1805 (O'Connor, J., concurring); 

see also East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 

U.S. 395, 404 n.9, 97 S. Ct. 1891, 1897 n.9 (1977); International 

Bhd. of Teamsters v. United States, 431 U.S. 324, 369 n.53, 97 S. 

Ct. 1843, 1872 n.53 (1977). A mixed-motives case is one in which 

both legitimate and illegitimate factors contribute to the 

employment decision. See Price Waterhouse, 490 U.S. at 232, 109 

S. Ct. at 1781 (plurality). Such a case differs from a pretext 

case in that the plaintiff must present evidence of illegal 

discrimination "sufficiently strong to shift the burden of proof 

to the employer," meaning that the plaintiff must adduce "direct 

evidence" of discrimination (that is, more persuasive evidence 

than the McDonnell Douglas/Burdine prima facie case). See

Armbruster v. Unisys Corp., No. 93-1333, Mem. op. at 22-23 (3d 

Cir. July ??, 1994); Miller, No. 93-1773, 1994 WL 283269, at *12 

n.6; Hook v. Ernst & Young, No. 92-3724, 1994 WL 283266, at *8-*9 

(3d Cir. June 28, 1994); Price Waterhouse, 490 U.S. at 277-78, 

109 S. Ct. at 1805 (O'Connor, J., concurring). 

 To rebut a plaintiff's case-in-chief in a mixed-motives 

case (that is, once the plaintiff has met his or her burden of 

proving an illegitimate factor "played a motivating [or 

substantial] part in an employment decision"), the employer must 

prove that "it would have made the same decision even if it had 

not allowed [the illegitimate factor] to play such a role." 
12 

B. Other Circuits' Approaches to After-Acquired Evidence

 The courts of appeals have grouped into two primary 

(albeit splintered) camps regarding the relevancy of afteracquired evidence of résumé and/or application fraud or employee 

misconduct on the job.0

1. Courts Finding After-Acquired Evidence May Bar Liability

 The Tenth Circuit formed the first camp with its 

seminal Summers decision. Summers held that after-acquired 

evidence, at least if material, bars all relief and hence 

effectively operates as a complete defense to liability. Based 

on after-acquired evidence of Summers' rampant on-the-job 

misconduct,0 State Farm moved for summary judgment to diminish 

 

Price Waterhouse, 490 U.S. at 244-45, 109 S. Ct. at 1787-88 

(plurality); see id. at 242, 109 S. Ct. at 1786 (plurality). The 

employer's rebuttal is thus an affirmative defense. See id. at 

246, 109 S. Ct. at 1708 (plurality); id. at 259-60, 109 S. Ct. at 

1795 (White, J., concurring); id. at 261, 109 S. Ct. at 1796 

(O'Connor, J., concurring). We note, however, that to the extent 

that Price Waterhouse barred all liability when the employer can 

show it would have taken the same action even had it not had any 

illegitimate motives, the 1991 Act overturned it. See Civil 

Rights Act of 1991, Pub. L. No. 102-166, § 107, 105 Stat. 1075-76 

(codified at 42 U.S.C.A. §§ 2000e-2(m), 2000e-5(g)(2)(B) (Supp. 

1994)). 

0The Supreme Court has granted certiorari to resolve this split 

during its next Term. See McKennon v. Nashville Banner 

Publishing Co., 114 S. Ct. 2099 (1994). At the time we heard 

oral argument, certiorari had not yet been granted in McKennon, 

and the parties asked the panel (and it agreed) to decide the 

case and not hold it in abeyance pending the probable grant of 

certiorari so that the case can proceed to a timely resolution. 

Cf. Milligan-Jensen v. Michigan Tech. Univ., 114 S. Ct. 22 (1993) 

(dismissing the writ of certiorari in an after-acquired evidence 

case). 

0Summers, a claims adjuster for the defendant insurance company, 

had been reprimanded on several occasions for falsifying company 

records and had eventually been placed on probationary suspension 
13 

the relief Summers could recover were he to prevail at the 

liability phase of trial. See Summers, 864 F.2d at 702-03. The 

Tenth Circuit held that the after-acquired evidence of Summers' 

on-the-job misconduct would not only limit Summers' remedies, 

but, by precluding Summers from any relief, the evidence would 

effectively avert State Farm's liability. 

 The court understood that technically McDonnell Douglas

presupposed that a defendant could avert liability only with a 

legitimate, nondiscriminatory motive known to the employer at the 

instant of its actions. See id. at 705. Yet it reasoned -- 

apparently because State Farm would have fired him had it known 

of his transgressions -- that "while . . . after-acquired 

evidence cannot be said to have been a `cause' for Summers' 

discharge in 1982, it is relevant to Summers' claim of `injury,' 

and does itself preclude the grant of any present relief or 

remedy to Summers." Id. at 708. The court likened the 

plaintiff's situation to a "masquerading doctor," meaning one who 

was not really a doctor but who had pretended to be one, 

discharged for discriminatory reasons, who "would be entitled to 

no relief." Id.

 Since Summers, courts have allowed after-acquired 

evidence to bar the employer's liability in two general catego-

 

for two weeks. About six months later, State Farm discharged 

him, not because of his falsification of records "but because of 

his poor attitude, inability to get along with fellow employees 

and customers, and similar problems dealing with the public and 

co-workers." Four years later, during discovery, State Farm 

learned that on at least 150 occasions Summers had falsified 

company records, eighteen instances of which falsifications 

occurred after his return from suspended status. 
14 

ries of cases: résumé and/or application fraud cases, and 

misconduct on the job cases. In a case of résumé or application 

fraud, the employer typically asserts that, had it known of the 

plaintiff's misrepresentation(s), it would never have hired him 

or her. See Welch v. Liberty Machine Works, Inc., 23 F.3d 1403, 

____ WL at *1, *3 (8th Cir. 1994) (brought under the Employee 

Retirement Income Security Act, 29 U.S.C.A. §§ 1001-1461 (1985 & 

Supp. 1994), and the Missouri Human Rights Act, MO. ANN. STAT. §§ 

213.010-.137 (Vernon 1986 & Supp. 1994)). The employer may 

alternatively argue that, had it at any time after the hiring 

found out about the misrepresentation(s), it would have promptly 

fired the plaintiff.0 See O'Driscoll v. Hercules, Inc., 12 F.3d 

176, 177-78 (10th Cir. 1994) (expanding the Summers holding from 

misconduct to after-acquired résumé and application fraud cases), 

petition for cert. filed, 62 U.S.L.W. 3757 (Apr. 1, 1994) (No. 

93-1728); Reed v. Amax Coal Co., 971 F.2d 1295, 1298 (7th Cir. 

1992) (per curiam). In some cases employers advance both 

 

0Some courts distinguish between "would not have hired" and 

"would have fired" cases on the basis that an employer would be 

more hesitant to fire a competent, capable employee than to not 

hire the applicant in the first place. See, e.g., Washington v. 

Lake County, Ill., 969 F.2d 250, 254, 255 n.5 (7th Cir. 1992). 

In Washington, the Seventh Circuit held that in cases where the 

employee actually was employed for some time, the "would not have 

hired" inquiry is irrelevant because "the temporal focus is on 

the time of the adverse employment decision." Id. at 256. As to 

the "would have fired" inquiry, however, the court somewhat 

inconsistently with its prior holding construed Price Waterhouse

to allow the employer to defend its actions with after-acquired 

evidence, stating that in such situations "the employer must show 

by a preponderance of the evidence that, if acting in a raceneutral manner, it would have made the same employment decision 

had it known of the after-acquired evidence." Id. at 255 

(emphasis supplied). 
15 

arguments in the alternative. See Milligan-Jensen v. Michigan 

Technological University, 975 F.2d 302, 304 n.2 (6th Cir. 1992), 

cert. dismissed, 114 S. Ct. 22 (1993); Washington v. Lake County, 

Ill., 969 F.2d 250, 253 (7th Cir. 1992); Johnson v. Honeywell 

Information Systems, Inc., 955 F.2d 409, 414-15 (6th Cir. 1992);0

cf. Dotson v. United States Postal Service, 977 F.2d 976, 978 

(6th Cir.) (per curiam) (holding that the plaintiff's employment 

application misrepresentations rendered him unqualified for the 

job without addressing whether the employer would not have hired 

or would have fired him therefor), cert. denied, 113 S. Ct. 263 

(1993). Obviously in job misconduct cases (like Summers), only a 

variant of the latter "would have fired" argument can be made. 

Cf. McKennon v. Nashville Banner Publishing Co., 9 F.3d 539, 542-

43 (6th Cir. 1993) (concluding that the plaintiff's job 

misconduct precluded her "claim of injury" and that consequently 

she was not entitled to "the grant of any relief or remedy"), 

cert. granted, 114 S. Ct. 2099 (1994). 

2. Courts Finding After-Acquired Evidence May Not Bar Liability

 The opposing camp, exemplified by the Eleventh Circuit 

in Wallace v. Dunn Construction Co., 968 F.2d 1174 (1992) when it 

openly broke ranks with Summers,

0 allows after-acquired evidence 

 

0Although Johnson involved a cause of action under Michigan's 

Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS §§ 37.2101-.2804, 

the court construed it "in the same manner as its federal 

counterpart." 955 F.2d at 415 n.1. 

0The first court of appeals after-acquired evidence case actually 

rejecting Summers was handed down by the Seventh Circuit in Smith 

v. General Scanning, Inc., 876 F.2d 1315 (1989), an ADEA suit. As 

the employer brought out during discovery, the plaintiff had 
16 

to come in only at the remedies stage to slim down the relief 

 

falsified his college credentials on his résumé. See id. at 

1317. The district court had held that the plaintiff's 

misrepresentation precluded the plaintiff from making out a prima 

facie case because he could not show that he was qualified for 

the position. The court of appeals, cognizant of the Summers

decision, rejected the district court's approach: 

By narrowly focusing on [the plaintiff's] initial 

burden, the district court was distracted from the real 

issue in this case. At issue is the lawfulness of 

Smith's termination. His resume fraud clearly had 

nothing to do with that; it surfaced only after [the 

plaintiff] was terminated and after this suit was commenced. Whether [the employer] discriminated against 

[the plaintiff] must be decided solely with respect to 

the reason given for his discharge . . . . His resume 

fraud is, for this purpose, irrelevant. 

Id. at 1319. The court noted in dicta that such evidence would 

be relevant at the remedies stage, however, because "it would 

hardly make sense to order [the plaintiff] reinstated to a job 

which he lied to get and from which he properly could be 

discharged for that lie." Id. at 1319 n.2. 

 But subsequent cases in the Seventh Circuit leave that 

courts' approach the most unsettled, as panel after panel seems 

at sea without seriously heeding what bearings have been set 

before. See Gilty v. Village of Oak Park, 919 F.2d 1247, 1251 

(7th Cir. 1990) (not referencing Smith but holding that evidence 

of the plaintiff's fabrications exposed three years after the 

adverse employment decision would bar all liability); Washington 

v. Lake County, Ill., 969 F.2d 250, 253 & n.2 (7th Cir. 1992) 

(same, but noting that the plaintiff had not challenged the 

validity of the Summers rationale, and that he had not advanced 

the argument that he should at least, in accordance with the 

dicta in Smith, be accorded partial backpay); Reed, 971 F.2d at 

1298 (approving Summers but giving it a restrained reading); 

Kristufek v. Hussmann Foodservice Co., 985 F.2d 364, 369, 370 

(7th Cir. 1993) (departing from the reasoning of Washington and 

Reed without citing them, returning to Smith for the proposition 

that "the only issue is the lawfulness of the termination for the 

reasons given," and holding that "[a] discriminatory firing must 

be decided solely with respect to the known circumstances leading 

to the discharge"). Thus, while not exactly clear, the Seventh 

Circuit, after bouncing back and forth between the two camps for 

a while, seems now to have settled alongside Wallace. See

Kristufek, supra. 
17 

available to the plaintiff.0 The court, having had the benefit 

of the Supreme Court's exposition in Price Waterhouse (applying 

the Mt. Healthy framework to Title VII and clarifying the 

question of timing in mixed-motives cases, see supra at Error! 

Bookmark not defined. n.Error! Bookmark not defined.), criticized 

the Summers decision for misapplying Mt. Healthy, "in that the 

Summers rule ignores the lapse of time between the employment 

decision and the discovery of a legitimate motive for that 

decision." Id. at 1179-80. In doing so, the court continued, 

"the Summers rule clashes with the Mt. Healthy principle . . . 

that the plaintiff should be left in no worse a position than if 

she had not been a member of a protected class or engaged in 

protected opposition to an unlawful employment practice." Id. at 

1179. 

 The Eleventh Circuit was also persuaded that the 

Summers rule would result in underenforcement of the federal 

anti-employment discrimination laws and accordingly underdeter 

unlawful employment discrimination. See id. at 1179-80. Having 

resolved that after-acquired evidence does not preclude 

liability, the court concluded with a detailed exposition on the 

 

0In Wallace, the plaintiff (Neil) had filed numerous causes of 

action against the employer under the Equal Pay Act and Title VII 

for wrongful discharge. During her deposition, Neil admitted 

having falsified her employment application by omitting a 

conviction on drug charges. Soon thereafter, the employer Dunn 

filed a motion for summary judgment, partially grounded in the 

Summers defense. See id., 968 F.2d at 1176-77. 
18 

availability of the standard remedies in after-acquired evidence 

cases.0

III. OUR APPROACH

A. The Liability Stage

1. After-Acquired Evidence Is Irrelevant at the Liability Stage

 A quick review of the overarching framework erected for 

employment discrimination claims, see supra at Error! Bookmark 

not defined. n.Error! Bookmark not defined., discloses why afteracquired evidence cannot be a defense to liability. What sets an 

after-acquired evidence case far apart from a mixed-motives case 

 

0With respect to reinstatement and front pay, the court held that 

those remedies would be inappropriate if the after-acquired 

evidence would have in and of itself led to the adverse 

employment action. See id. at 1181-82. An injunction against an 

employer's unlawful practices, it added, would not be available 

if the court did not also order the plaintiff reinstated. See

id. at 1182. The court also determined, however, that afteracquired evidence would not affect the availability of declaratory relief. See id.

 According to the court, backpay should be awarded up 

until the date of judgment, unless the employer can prove that 

"it would have discovered the after-acquired evidence prior to 

what would otherwise be the end of the backpay period in the 

absence of the allegedly unlawful acts and this litigation." Id. 

This division, the court explained, would fairly balance the 

employer's right to make lawful employment decisions and the 

employee's right to make-whole relief. Ending the backpay period 

when the employer actually discovered the evidence would not make 

the victim whole, the court maintained, insofar as absent the 

unlawful conduct and the resulting litigation, the employer would 

very likely not have detected the fraud or misconduct. See id.

 Finally, with regard to the award of attorneys' fees, 

the court held that if the employee obtained "some benefit" from 

the lawsuit or if the litigation "materially altered" the 

parties' legal relationship, she would as a "prevailing party" be 

entitled to partial attorneys' fees; the after-acquired evidence 

could diminish the award by an amount arrived at using 

"traditional attorney fee principles." See id. at 1182-83. 
19 

like Price Waterhouse or a pretext case like McDonnell Douglas is 

that the articulated "legitimate" reason, which was non-existent 

at the time of the adverse decision, could not possibly have 

motivated the employer to the slightest degree. After-acquired 

evidence, simply put, is not relevant in establishing liability 

under Title VII or ADEA because the sole question to be answered 

at that stage is whether the employer discriminated against the 

employee on the basis of an impermissible factor at the instant 

of the adverse employment action. See Wallace, 968 F.2d at 1179 

(pointing out that "the Summers rule ignores the lapse of time 

between the employment decision and the discovery of a legitimate 

motive for that decision"). 

 The Supreme Court in Price Waterhouse held that in a 

mixed-motives case the employer could rely only on a legitimate 

motive it held at the time of the adverse employment decision. 

See 490 U.S. at 252, 109 S. Ct. at 1791 (plurality) ("An employer 

may not . . . prevail in a mixed-motives case by offering a 

legitimate and sufficient reason for its decision if that reason 

did not motivate it at the time of the decision." (emphasis 

supplied)); id. at 250, 109 S. Ct. at 1790 (plurality) (requiring 

the employer's legitimate, sufficient reason to have motivated 

the employer "at the moment of the decision"); id. at 241, 109 S. 

Ct. at 1785 (plurality) ("The critical inquiry . . . is whether 

[a protected characteristic] was a factor in the employment 

decision at the moment it was made." (emphasis in original)); id.

at 259, 109 S. Ct. at 1795 (White, J., concurring) (stating that 

the employee must "show that the unlawful motive was a 
20 

substantial factor in the adverse employment action" (emphasis in 

original)); id. at 266-67, 109 S. Ct. at 1799 (O'Connor, J., 

concurring) (stating that the employer must show that "despite 

consideration of illegitimate factors the individual plaintiff 

would not have been hired or promoted in any event"). 

 Thus, under the mixed-motives analysis, the employer in 

an after-acquired evidence case cannot contend that it would have 

reached the same decision at the time it was made absent the 

illicit motive. Concomitantly, under the pretext analysis, it 

should be simple for the employee to demonstrate beyond 

peradventure that the proffered legitimate (but after-acquired) 

reason was not the true cause for the decision but is merely a 

"pretext." See, e.g., Eastland v. Tennessee Valley Auth., 704 

F.2d 613, 626 (11th Cir. 1983) (holding that the employer's 

proffered non-discriminatory reason was pretextual because the 

employer was unaware of the proffered reason at the time it made 

its decision), cert. denied, 465 U.S. 1066, 104 S. Ct. 1415 

(1984); cf. McDonnell Douglas, 411 U.S. at 802, 805, 93 S. Ct. at 

1824, 1826 (assuming that the employer was aware of the proffered 

reason at the time of the decision). Although Summers reasoned 

not that the after-acquired evidence would avoid liability but 

instead that it would bar all remedies, the effect is the same, 

and therefore the Summers rationale entirely eviscerates the 

temporal holding in Price Waterhouse that an employer can rely on 

a non-discriminatory justification for its action only if that 

justification actually motivated it at the time of its decision. 
21 

 Having undermined the defendant's articulated 

legitimate explanation, under the standard employment 

discrimination burden-shifting scheme it would now be up to the 

factfinder to determine if the plaintiff met his or her burden of 

proving intentional discrimination. By removing this basic issue 

from the factfinder, courts applying the after-acquired evidence 

doctrine depart from the settled framework. Problematically, 

courts that allow after-acquired evidence to bar liability allow 

employers to make plaintiffs worse off for having a protected 

characteristic. That is because presumably, absent the wrong 

done the employee, the employer would not have discovered the 

"legitimate motive" evidence (at least during the relevant time 

frame) and the employee would still be employed. See Wallace, 

968 F.2d at 1179 (observing that the Summers rule "excuses all 

liability based on what hypothetically would have occurred absent 

the alleged discriminatory motive assuming the employer had 

knowledge that it would not acquire until sometime during the 

litigation arising from the discharge" (some emphasis omitted)). 

 To assure that the plaintiff is restored to the 

position he or she would have occupied absent the employer's 

unlawful discrimination, when the employer's motive was 

exclusively discriminatory at the time of the decision (as is 

assumed arguendo in the Summers-type cases), a legitimate reason 

for the decision brought out later must not be used nunc pro tunc

by the employer to justify its actions. See Welch, 23 F.3d at 

____ WL at *4 (Arnold, J., dissenting) ("I think that the objects 

of deterrence and compensation both require us to examine a 
22 

defendant's mind for what it contained, not what it might have 

contained, to determine whether he has committed a wrong."). An 

employer's (assumed) discrimination is a deplorable wrong, and 

the fact that the employer might have accomplished a like result 

without maltreating the employee by employing different, 

nonharmful means (from the point of view of federal law) -- that 

is, by relying on legitimate instead of discriminatory reasons -- 

is beside the point, since if only it had used the other, 

defensible means there would have been no injury and no cause for 

the lawsuit. 

2. Victims of Invidious Employment Discrimination Have Standing

 Some members of the no-liability camp advance the 

rationale that the plaintiff lacks standing because he or she was 

not qualified for the position (qualification being an element of 

the plaintiff's McDonnell Douglas prima facie case), an argument 

pertaining to the employer's de jure, as opposed to Summer's de 

facto, non-liability. See Dotson, 977 F.2d at 977-78; Gilty v. 

Village of Oak Park, 919 F.2d 1247, 1251 (7th Cir. 1990).0 That 

argument, however, is at odds with Supreme Court precedent. 

 

0Cf. Williams v. Boorstin, 663 F.2d 109, 115-18 (D.C. Cir. 1980) 

(reaching the same conclusion as Dotson and Gilty that the 

plaintiff could not establish a prima facie case because he was 

unqualified, but there the employer had discovered the employee 

"lawyer" lacked a law degree before discharging him), cert. 

denied, 451 U.S. 985, 101 S. Ct. 2319 (1981); Mantolete v. 

Bolger, 767 F.2d 1416, 1423 (9th Cir. 1985) (holding that the 

district court did not abuse its discretion in allowing the 

defendant to introduce after-acquired evidence to rebut the 

plaintiff's prima facie case of qualification, but cautioning 

that it would be improper for the employer to use such evidence 

to justify its decision). 
23 

 The plaintiff's McDonnell Douglas prima facie case was 

formulated to identify circumstances under which the 

discriminatory motive or intent of the employer may be inferred. 

See Hicks, 113 S. Ct. at 2747 (describing that the plaintiff's 

prima facie case gives rise to a presumption of discriminatory 

intent, which the defendant must rebut with evidence of a 

legitimate reason); Burdine, 450 U.S. at 253-54, 101 S. Ct. at 

1094 (explaining that the plaintiff's prima facie case must "give 

rise to an inference of unlawful discrimination"); Furnco Constr. 

Corp. v. Waters, 438 U.S. 567, 576-77, 98 S. Ct. 2943, 2949-50 

(1978) ("A prima facie case under McDonnell Douglas raises an 

inference of discrimination only because we presume these acts, 

if otherwise unexplained, are more likely than not based on the 

consideration of impermissible factors."); Teamsters, 431 U.S. at 

358, 97 S. Ct. at 1866. This reading is substantiated by the 

fact that the pliant McDonnell Douglas prima facie case is only 

one of many alternative routes available for a plaintiff to 

travel, amongst which is direct evidence bearing on discriminatory intent. See, e.g., United States Postal Serv. v. Aikens, 

460 U.S. 711, 715, 103 S. Ct. 1478, 1482 (1978).0 Consequently, 

what is relevant to the inquiry is the employer's subjective 

assessment of the plaintiff's qualifications, not the plaintiff's 

objective ones if unknown to the employer.0 In other words, the 

 

0Even were the Dotson and Gilty "no standing" rationale 

persuasive in McDonnell Douglas type cases, it could not help the 

employer in cases (such as this one) where the plaintiff adduces 

direct evidence of disparate treatment. 

0Many courts construing Title VII or ADEA have so held. See, 

e.g., Kristufek v. Hussmann Foodservice Co., 985 F.2d 364, 369 
24 

strength of the inference of discrimination based on the prima 

facie case is independent of the plaintiff's qualifications that 

were unknown to the employer. 

 The no-standing argument additionally runs counter to 

the plain meaning of Title VII and ADEA. Those statutes grant 

standing to "any individual" discriminated against by a covered 

employer. See 42 U.S.C.A. § 2000e-2(a) (1981); 29 U.S.C.A. § 

 

(7th Cir. 1993); Wallace, 968 F.2d at 1179; Smith v. General 

Scanning, Inc., 876 F.2d 1315, 1319 (1989); Sabree v. United Bhd. 

of Carpenters & Joiners Local No. 33, 921 F.2d 396, 402 (1st Cir. 

1990); Norris v. City & County of San Francisco, 900 F.2d 1326, 

1331 (9th Cir. 1990); Hill v. Seaboard C. L. R.R. Co., 767 F.2d 

771, 774 (11th Cir. 1985), aff'd on reh'g, 885 F.2d 804 (11th 

Cir. 1989); Cuddy v. Carmen, 762 F.2d 119, 127 & n.12 (D.C. 

Cir.), cert. denied, 474 U.S. 1034, 106 S. Ct. 597 (1985); 

Eastland v. Tennessee Valley Auth., 704 F.2d 613, 626 (11th Cir. 

1983), cert. denied, 465 U.S. 1066, 104 S. Ct. 1415 (1984); Lee 

v. National Can Corp., 699 F.2d 932, 937 (7th Cir.), cert. 

denied, 464 U.S. 845, 104 S. Ct. 148 (1983); cf. Price Waterhouse, 490 U.S. at 252, 109 S. Ct. at 1791; Teamsters, 431 U.S. 

at 369 n.53, 97 S. Ct. at 1872 n.53 (illustrating that an 

employer may rebut a plaintiff's prima facie case by showing that 

"the nonapplicant's stated qualifications were insufficient" 

(emphasis supplied)); see also Regents of University of Cal. v. 

Bakke, 438 U.S. 265, 320 n.54, 98 S. Ct. 2733, 2764 n.54 (1978) 

("Having injured respondent solely on the basis of an unlawful 

classification, petitioner cannot now hypothesize that it might 

have employed lawful means of achieving the same result."). 

 This temporal knowledge limitation distinguishes a 

statutory unlawful discrimination claim from a contractual 

wrongful termination claim. In contract actions, if one party 

commits a material breach, the other party may generally use it 

to justify nonperformance even if, at the time of its own 

nonperformance, the second party was unaware of the first party's 

material breach. See College Point Boat Corp. v. United States, 

267 U.S. 12, 15-16, 45 S. Ct. 199, 200-01 (1925); REST.2D CONTRACTS

§ 385 cmt. a (1981); id. § 225 & cmt. e; id. § 237 & cmt. c; cf.

id. § 164 (fraudulent inducement makes a contract voidable). In 

a contract claim, questions like unidentified misrepresentations 

and the signing of an attestation clause are accordingly 

important. But in our view it is specious to conflate the two 

very different causes of action. 
25 

623(a) (1985). The result is no different if one focuses on the 

definition of "employee" rather than "individual," since both 

statutes define an "employee" as "an individual employed by an 

employer." 42 U.S.C.A. § 2000e(f) (1981); 29 U.S.C.A. § 630(f) 

(1985). The point is that neither definition contains an 

exception for individuals who would not have been employed by the 

employer but for their fraud or misconduct, or for employees who 

measured against some objectively defined criteria are "unqualified." Congress having granted standing in the circumstances we 

consider here, the matter is settled. See Kenneth G. Parker, 

Note, After-Acquired Evidence in Employment Discrimination Cases: 

A State of Disarray, 72 TEX. L. REV. 403, 428 (1993) ("Simply put, 

the ability of the plaintiff to sue is delineated by the statute 

itself, and [the] remedy should be determined with reference to 

the dual purposes of making the plaintiff whole and deterring a 

discriminating employer."). 

3. Victims of Invidious Employment Discrimination

 Suffer Real and Legal Injury

 Summers understood that "McDonnell Douglas clearly 

presupposes a `legitimate, nondiscriminatory reason' known to the 

employer at the time of the employee's discharge." 864 F.2d at 

705 (emphasis in original). Summers reached its conclusion that 

the employer would not be liable for the different, practical (as 

opposed to legal) reason that, the plaintiff not having been 

"injured," he or she could obtain no relief. We disagree. 
26 

 Reasoning that the plaintiff suffered no legal injury 

from invidious discrimination when after-acquired evidence 

reveals résumé fraud or work misconduct, see Summers, 864 F.2d at 

708 (assuming that the employer's decision was motivated by an 

illegitimate reason); McKennon, 9 F.3d at 541, 542 (same); 

Milligan-Jensen, 975 F.2d at 305 (same); Washington, 969 F.2d at 

255, 256-57 (same); Johnson, 955 F.2d at 415 (same), defies 

common sense. Imagine, for instance, an employer which 

intentionally batters an employee who procured his or her 

position through fraud or who falsified company records. The 

Summers rationale would bar the employee's recovery in an 

appropriate action because the employee had no "right" to be 

where he or she was at the moment of his or her injury. Surely 

that result flies in the face of reason and the whole body of 

tort law.0 Accord Welch, 23 F.3d at WL at *4 (Arnold, J., 

dissenting). 

 

0In Baab v. AMR Servs. Corp., 811 F. Supp. 1246 (N.D. Ohio 1993), 

the court concluded in context of an intentional-infliction of 

emotional distress claim tacked on to an employment discrimination suit that 

one could take the view that plaintiff should not 

complain of injury inflicted upon her at her workplace 

when, had the defendant been apprised of her 

wrongdoing, she would not have been there in the first 

place. This argument . . . misses the mark. The 

injury complained of here is injury to one's person and 

plaintiff is entitled to be free of that injury 

regardless of her status as a dischargeable employee. 

Id. at 1262. But cf. Russell v. Microdyne Corp., 830 F. Supp. 

305, 306-08 (E.D. Va. 1993) (supplanting the Summers rationale to 

sexual harassment situations); Churchman v. Pinkerton's Inc., 756 

F. Supp. 515, 518-21 (D. Kan. 1991) (same); Mathis v. Boeing 
27 

 The rationale might have a stronger bite to it were the 

only injury to the victim the adverse employment action per se;

0

but, quite to the contrary, in an employment discrimination suit 

the traumatic injury is having been subjected to the adverse 

employment action because of one's race, sex, age, or other 

protected characteristic, that is, having been unlawfully 

discriminated against. Put more dramatically, to maintain that a 

victim of employment discrimination has suffered no injury is to 

deprecate the federal right transgressed and to heap insult ("You 

 

Military Airplane Co., 719 F. Supp. 991, 994-95 (D. Kan. 1989) 

(same). 

 Indeed, even one whom the defendant knows to be a 

wrongdoer at the time of the defendant's actions is not too 

unworthy in the eyes of the law to recover for an unprivileged 

intentional or even a negligent tort. See REST.2D TORTS § 889 & 

cmts. a, b (1979) ("One is not barred from recovery for an 

interference with his legally protected interests merely because 

at the time of the interference he was committing a tort or a 

crime . . . ."); id. § 890 (discussing privileges); cf. id. § 870 

& cmt. e (1979) ("One who intentionally causes injury to another 

is subject to liability to the other for that injury, if his 

conduct is generally culpable and not [privileged]."). 

 Certainly, the defendant who does not know that the 

victim is a wrongdoer at the time the tort is committed has no 

privilege to inflict the harm. And it would seem that if one has 

no privilege --because there is missing some provocation or 

circumstance establishing the privileges of self-defense, defense 

of property, or defense of others -- to injure a known trespasser 

deliberately, a fortiori one has no such privilege with respect 

to someone invited onto the premises, albeit the invitation be 

procured through trick. 

0Although even were that the case an argument can be made that 

the plaintiff was still legally injured since, absent the 

discrimination, he or she would still have been employed and the 

employer presumably would not have exposed the fraud or 

misconduct for some unknown span of time. See Massey v. Trump's 

Castle Hotel & Casino, 828 F. Supp. 314, 322 (D.N.J. 1993) 

("Absent those illegal motives, the employee would still be 

employed. Thus, an illegal discharge causes an injury regardless 

of an employee's previous misconduct, and that injury must be 

subject to some redress."). 
28 

had it coming") upon injury. Cf. Richard Granofsky & Jay S. 

Becker, After-Acquired Evidence in Employment Discrimination 

Cases, 36 DEF. 19, 24 (1994) (referring to such employees as 

"unworthy"). A victim of discrimination suffers a dehumanizing 

injury as real as, and often of far more severe and lasting harm 

than, a blow to the jaw.0 See H.R. REP. No. 40(I), 102d Cong., 

1st Sess. 15 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 553 

("The Committee intends to confirm that the principle of antidiscrimination is as important as the principle that prohibits 

assaults, batteries and other intentional injuries to people."). 

 In the 1991 Act, Congress understood as much and 

changed the result reached in Price Waterhouse: in cases decided 

 

0See United States v. Burke, 112 S. Ct. 1867, 1872 (1992) ("It is 

beyond question that discrimination in employment on the basis of 

sex, race, or any of the other classifications protected by Title 

VII is, as . . . this Court consistently has held, an invidious 

practice that causes grave harm to its victims."); H.R. REP. No. 

40(I), 102d Cong., 1st Sess. 14 (1991) ("Victims of intentional

discrimination often endure terrible humiliation, pain and 

suffering while on the job. This distress often manifests itself 

in emotional disorders and medical problems."), reprinted in 1991 

U.S.C.C.A.N. 549, 552; id. at 66-69 (documenting the disastrous 

effects of invidious discrimination on its victims), reprinted in

1991 U.S.C.C.A.N. at 604-07; Pauline Yoo, Note, The AfterAcquired Evidence Doctrine, 25 COLUM. HUM. RTS. L. REV. 219, 252 & 

n.201 (1993) ("Discrimination can damage a victim emotionally, 

psychologically, or physically."); id. at 243 & n.150 (same); 

Cheryl K. Zemelman, Note, The After-Acquired Evidence Defense to 

Employment Discrimination Claims: The Privatization of Title VII 

and the Contours of Social Responsibility, 46 STAN. L. REV. 175, 

199-200 (1993) [hereinafter Zemelman, The After-Acquired Evidence 

Defense]; see also Civil Rights Act of 1991, Pub. L. No. 102-166, 

§ 107(b), 105 Stat. 1075-76 (codified at 42 U.S.C.A. § 2000e5(g)(2)(B) (Supp. 1994)) (allowing a court to grant a victim in a 

mixed-motives case declaratory and injunctive relief and to award 

him or her attorneys' fees and costs even if the employer had a 

legitimate, sufficient motive when it acted). 
29 

under the 1991 Act, the plaintiff is entitled to some relief even 

if the employer actually would have taken the same action at the 

same time absent any invidious motive. See Civil Rights Act of 

1991, Pub. L. No. 102-166, § 107, 105 Stat. 1075-76 (codified at 

42 U.S.C.A. §§ 2000e-2(m), 2000e-5(g)(2)(B) (Supp. 1994)). 

 Moreover, we think it clear that, where a federal right 

has been violated, federal courts must provide a remedy. The 

right which is violated by an employer which discriminates on the 

basis of a protected characteristic is not the employee's right 

to the job, but the employee's right to equal, fair, and 

impartial treatment, the violation of which frequently results, 

inter alia, in a significant injury to the victim's dignity and a 

demoralizing impairment of his or her self-esteem. See supra at 

Error! Bookmark not defined. n.Error! Bookmark not defined.; cf.

H.R. REP. No. 40(I) at 64-65, reprinted in 1991 U.S.C.C.A.N. at 

602-03; Brown v. Board of Educ., 347 U.S. 483, 494, 74 S. Ct. 

686, 691-92 (1954); see also Civil Rights Act of 1991, Pub. L. 

No. 102-166, § 102, 105 Stat. 1072-73 (codified at 42 U.S.C.A. § 

1981a(b)(3) (Supp. 1994)) (providing a plaintiff may recover 

compensatory damages under Title VII for "emotional pain, 

suffering, inconvenience, mental anguish, loss of enjoyment of 

life, and other nonpecuniary losses"). The plaintiff's deceit or 

misconduct toward the employer is most appropriately considered 

in the remedies stage, or in any claim compatible with the 

federal anti-discrimination laws that the employer may properly 

assert against the employee under appropriate state or federal 

law. See Massey, 828 F. Supp. at 323 ("[I]f the employer has 
30 

somehow been damaged by the plaintiff's misrepresentations or 

misconduct on the job, it may seek its own damages where 

appropriate."). 

 The Summers rationale confuses the question whether the 

employer injuriously discriminated against the employee with the 

question whether the employee had an entitlement to the job. 

Whether the employee had some "right" to the job in question is 

not an issue in a Title VII or ADEA action; the issue is whether 

the employer discriminated based on an impermissible factor. 

Besides receiving no mention in the statutes, the "property 

right" inquiry is irrelevant for the simple reason that both 

Title VII and ADEA operate against the presumed backdrop of atwill employment, meaning that the employee is presumptively not

entitled to the job, irrespective of résumé fraud or performance 

misconduct. Under the traditional employment-at-will doctrine, 

an employer may discipline or terminate an employee for any

reason or no reason.0 Thus, if entitlement to the job were a 

 

0See, e.g., Poff v. Western Nat'l Mut. Ins. Co., 13 F.3d 1189, 

1191 (8th Cir. 1994) (Minnesota law); Richards v. General Motors 

Corp., 991 F.2d 1227, 1234-35 (6th Cir. 1993) (Michigan law); 

Hall v. Western Prod. Co., 988 F.2d 1050, 1058-59 (10th Cir. 

1993) (Wyoming law); Carlson v. Arnot-Ogden Memorial Hosp., 918 

F.2d 411, 414 (3d Cir. 1990) (Pennsylvania law). 

 While the federal anti-employment discrimination laws 

were not designed to impinge directly upon employer free choice, 

indirect effects are inevitable. No doubt the federal employment 

discrimination laws have curtailed the more excessive aspects of 

the employment-at-will doctrine with respect to protected 

persons. Now, a covered employer who arbitrarily and 

capriciously terminates a protected person without any animus 

toward the protected characteristic runs a not insubstantial risk 

of liability. For example, the Supreme Court has intimated that 

an arbitrary and capricious rationale may not meet the employer's 

burden of rebutting a plaintiff's prima facie case of 
31 

prerequisite to liability or recovery, then no at-will employee 

could recover under Title VII or ADEA -- but that plainly is not 

the case. See Washington, 969 F.2d at 256 ("A `property right' in 

one's job . . . is not a requirement in a federal discrimination 

claim."). 

 What is the case is that neither Title VII nor ADEA 

strips a wrongdoing employee of his or her entitlement to 

protection against unlawful discrimination. Instead of focusing 

on the worthiness of the victim, the statutes exclusively and 

unambiguously fix on the employer's motives. See Alexander v. 

Gardner-Denver Co., 415 U.S. 36, 51, 94 S. Ct. 1011, 1021 (1974) 

("Title VII's strictures are absolute and represent a congressional command that each employee be free of discrimination." 

(emphasis supplied)); Massey, 828 F. Supp. at 323 ("There is 

nothing in [Title VII] itself to support a requirement that the 

job had been acquired honestly."). An employee's fraud or 

misconduct, while bearing on his or her fitness for the job, 

simply does not justify, excuse, or make harmless the employer's 

intentional, invidious discrimination. Because the Summers

approach ignores these precepts, thereby denying remedial justice 

for a grievous injury, we reject that approach. 

 

discrimination. See Burdine, 450 U.S. at 255, 101 S. Ct. at 1094 

("The [legitimate] explanation [the defendant] provided must be 

legally sufficient to justify a judgment for the defendant."); 

McDonnell Douglas, 411 U.S. at 802-03, 93 S. Ct. at 1824 ("We 

need not attempt in the instant case to detail every matter which 

fairly could be recognized as a reasonable basis for a refusal to 

hire."). Nevertheless, the employment-at-will doctrine has been 

abridged only to the extent necessary to enforce the federal 

employment discrimination laws. 
32 

4. Summers Ignores the Compelling Public Interest in Enforcement

 Besides slighting the very real injury suffered by a 

victim of employment discrimination, the Summers rule disregards 

that an act of employment discrimination is much more than an 

ordinary font of tort law. The anti-employment discrimination 

laws are suffused with a public aura for reasons that are well 

known. Throughout this Nation's history, persons have far too 

often been judged not by their individual merit, but by the 

fortuity of their race, the color of their skin, the sex or year 

of their birth, the nation of their origin, or the religion of 

their conscientious choosing. Congress has responded to these 

pernicious misconceptions and ignoble hatreds with humanitarian 

laws formulated to wipe out the iniquity of discrimination in 

employment, not merely to recompense the individuals so harmed 

but principally to deter future violations. 

 The anti-employment discrimination laws Congress 

enacted consequently resonate with a forceful public policy 

vilifying discrimination.0 A plaintiff in an employment-

 

0See, e.g., Aikens, 460 U.S. at 716, 103 S. Ct. at 1482 ("The 

prohibitions against discrimination contained in the Civil Rights 

Act of 1964 reflect an important national policy."); Franks v. 

Bowman Transp. Co., 424 U.S. 747, 778 n.40, 96 S. Ct. 1251, 1271 

n.40 (1976) (stating that "claims under Title VII involve the 

vindication of a major public interest" (internal quotations 

omitted)); id. at 763, 96 S. Ct. at 1263 ("[Congress] ordained 

that its policy of outlawing [discrimination on the basis of 

race, religion, sex, or national origin] should have the `highest 

priority' . . . ."); Alexander, 415 U.S. at 45, 94 S. Ct. at 1018 

("[T]he private litigant not only redresses his own injury but 

also vindicates the important congressional policy against 

discriminatory employment practices."); cf. Newman v. Piggie Park 
33 

discrimination case accordingly acts not only to vindicate his or 

her personal interests in being made whole, but also as a 

"private attorney general" to enforce the paramount public 

interest in eradicating invidious discrimination.0

 In sum, it appears that the employee's misconduct or 

fraud is a possible wrong against the employer, whereas the 

employer's discrimination is a wrong against the employee and

society at large. See Massey, 828 F. Supp. at 323 ("Any concern 

 

Enters., 390 U.S. 400, 402, 88 S. Ct. 964, 966 (1968) (per 

curiam) (decided under Title II of the Civil Rights Act of 1964) 

(stating that Congress intended the struggle against discrimination to be a policy "of the highest priority"). 

0See EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 602, 101 

S. Ct. 817, 824 (1981) ("Congress considered the charging party a 

`private attorney general,' whose role in enforcing the ban on 

discrimination is parallel to that of the [Equal Employment 

Opportunity] Commission itself." (citing Christiansburg Garment 

Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 700 (1978)); New 

York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63, 100 S. Ct. 

2024, 2030-31 (1980); Albemarle Paper Co. v. Moody 422 U.S. 405, 

415, 95 S. Ct. 2362, 2370 (1975); Alexander, 415 U.S. at 45, 94 

S. Ct. at 1018; see also Newman, 390 U.S. at 401-02, 88 S. Ct. at 

966 (decided under Title II of the Civil Rights Act of 1964). 

 In the Civil Rights Act of 1991, by authorizing a court 

to grant a victim of discrimination in a mixed-motives case 

declaratory and injunctive relief and partial attorneys' fees and 

costs, Congress again recognized the public interest in 

eradicating discrimination even when the employer had acted at 

the time of its decision for a legitimate reason that would have 

propelled it to take the same actions standing alone. See Civil 

Rights Act of 1991, Pub. L. No. 102-166, §107(b), 105 Stat. 1075-

76 (codified at 42 U.S.C.A. § 2000e-5(g)(2)(B) (Supp. 1994)). 

That is, the 1991 Act reinforces the common sense notion that, 

even if the plaintiff is entitled to no personal relief, at least 

the remedies inuring to the public's benefit -- a declaratory 

judgment, injunctive relief, and, derivatively, attorneys' fees, 

see supra (discussing the litigant's role as a private attorney 

general) -- should be considered in an after-acquired evidence 

case. Since those remedies do not economically benefit the 

plaintiff, that provision evidences a strong public policy in 

favor of enforcement of the anti-employment discrimination laws. 
34 

we may have in awarding damages to employees who have acquired 

their jobs improperly does not outweigh the plaintiff's statutory 

right to recover . . . ."). The Summers approach unjustifiably 

exalts the employer's purely private state right above the 

employee's quasi-public federal one. 

5. Non-Liability Undermines the Statutes' Purposes

 As described supra Part 31, Congress prescribed a 

strong medicine, the anti-employment discrimination laws, to cure 

the social malady of invidious discrimination. Deterrence is 

accomplished by placing an economic price on discriminatory acts, 

and by exposing and stigmatizing the wrongdoer's acts before the 

entire community. We also bear in mind that, as remedial 

statutes, Title VII and ADEA should be liberally construed to 

advance their beneficent purposes.0 Unfortunately, the Summers

approach disregards that canon of construction and frustrates the 

paramount objective of Title VII and ADEA, to deter violations of 

 

0See, e.g., Hart v. J. T. Baker Chem. Co., 598 F.2d 829, 831 (3d 

Cir. 1979) (Title VII); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 

765-66, 99 S. Ct. 2066, 2076 (1979) (Blackmun, J., concurring) 

(ADEA); Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 

1221, 1229 (3d Cir. 1978) (in banc) (same); cf., e.g., Dennis v. 

Higgins, 498 U.S. 439, 443, 111 S. Ct. 865, 868 (1991) (section 

1983). 

 One overriding lesson the 1991 Act tutors all but its 

most unmindful reader is that Congress was unhappy with 

increasingly parsimonious constructions of Title VII. 

Essentially, Congress forcefully reminded courts of the canon 

that Title VII and ADEA, as remedial statutes, are to be 

construed liberally to promote their welfare purposes, equality 

of treatment and employment opportunities. 
35 

the law.0 See Wallace, 968 F.2d at 1180-81; cf. Price 

Waterhouse, 490 U.S. at 265, 109 S. Ct. at 1798 (O'Connor, J., 

concurring) (stating that if "an illegitimate criterion was a 

substantial factor in an adverse employment decision, the 

deterrent purpose of [Title VII] has clearly been triggered." 

(emphasis in original)). 

 A strong deterrence policy is the needed stimulus to 

propel otherwise indifferent employers into taking affirmative 

steps to educate and discipline members of their workforce 

insensitive to or disdainful of their co-workers' civil rights. 

Economic penalties work as reliable engines to drive home 

forcefully to rational employers the seriousness and solemnity of 

our national policy denouncing discrimination, and thereby 

inspire affirmative responses. See Albemarle Paper, 422 U.S. at 

417-18, 95 S. Ct. at 2371-72 ("It is the reasonably certain 

prospect of a backpay award that provide[s] the spur or catalyst 

which causes employers . . . to self-examine and to self-evaluate 

their employment practices and to endeavor to eliminate, so far 

 

0"The `primary objective' of Title VII is to bring employment 

discrimination to an end." Ford Motor Co. v. EEOC, 458 U.S. 219, 

228, 102 S. Ct. 3057, 3063 (1982) (citing Albemarle Paper, 422 

U.S. at 417, 95 S. Ct. at 2371); see 28 U.S.C.A. § 621(b) (1985) 

(listing the purposes of ADEA, including "to prohibit arbitrary 

age discrimination in employment"); Zinger v. Blanchette, 549 

F.2d 901, 905 (3d Cir. 1977) ("The primary purpose behind [ADEA] 

is to prevent age discrimination in hiring and discharging 

workers."), cert. denied, 434 U.S. 1008, 98 S. Ct. 717 (1978). 

Compensating victims to make them whole, while also of great 

weight, is a secondary objective. See Albemarle Paper, 422 U.S. 

at 417-18, 95 S. Ct. at 2371-72; cf. Teamsters, 431 U.S. at 364, 

97 S. Ct. at 1869 (stating that the deterrence and compensatory 

purposes are "equally important"). 
36 

as possible, the last vestiges of an unfortunate and ignominious 

page in this country's history." (internal quotations omitted)); 

cf. Landgraf v. USI Film Prods., 114 S. Ct. 1483, 1506 & n.35 

(1994) (recognizing that liability impacts "private parties' 

planning"); City of Riverside v. Rivera, 477 U.S. 561, 575, 106 

S. Ct. 2686, 2694 (1986) (plurality) (section 1983) (stating that 

"the damages a plaintiff recovers contribute significantly to the 

deterrence of civil rights violations in the future").0

 

0On the other hand, allowing employees or applicants who 

committed fraud or misbehaved on the job to prevail will not 

notably diminish their disincentive to wrong or deceive their 

employers or their prospective employers. It seems unreasonable 

to attribute to the wrongdoing employee or applicant the strategy 

to lie to or cheat his or her employer or prospective employer 

with the expectation that, if the employer unlawfully 

discriminates against him or her, it will not be able to use that 

wrongful conduct against him or her if discovered in the course 

of the resulting proceedings. See Massey, 828 F. Supp. at 322 

n.10 ("We find it preposterous that an employee would refrain 

from lying [on a résumé or employment application] because she 

anticipates that she may be illegally discriminated against later 

and wants to preserve her right to recover damages."). 

Applicants misrepresent their qualifications in order to secure 

the employment in the first place, a powerful incentive that will 

not be curtailed by the unlikely prospect, of which the great 

bulk of applicants and employees will be unaware, that the 

employer may discover the falsehood in an employment discrimination action and will be able to exploit it to bar the employee's 

or applicant's claim. The applicant's incentive not to be 

dishonest, and the employee's incentive not to breach his or her 

duties of truthfulness, loyalty, and obedience, stem from the 

fact that he or she is always subject to disciplinary measures if 

the employer learns of the wrong outside the context of discovery 

in an employment discrimination case. The only applicant or 

employee incentive that will wane if after-acquired evidence is 

allowed to bar all liability is the plaintiff's vindication of 

his or her federal rights when he or she is unlawfully 

discriminated against, even where the discrimination is ongoing, 

especially since any attorney the plaintiff might consult would 

presumably become aware of the rule. 

 We note in passing that many employers in fact 

responsibly investigate applicants across-the-board before hiring 
37 

 Of course, the efficacy of the after-acquired evidence 

tactic has not escaped the attention of defense counsel, some of 

whom have recommended that, to maximize a client's odds of 

success, defense counsel's first step when defending an 

employment discrimination claim should be thoroughly to 

investigate the plaintiff's background and job performance. 

Indeed, many have instructed employers on specific policies they 

can implement to erect the strongest possible defense in 

employment discrimination suits, and, if recognized, one can 

anticipate the extensive and effective use of the after-acquired 

evidence doctrine.0 The prospect of a defendant's thorough 

 

someone, and that the employer's need for truthful employment 

applications has been sharpened with the spread of employer 

liability for "negligent hiring." An employment-discrimination 

suit brought by a discharged employee or unsuccessful applicant, 

however, does not provide a sound business (as opposed to litigation) reason for the employer to begin investigating its exemployee's or applicant's honesty and fidelity. 

0See James A. Burstein & Steven L. Hamann, Better Late Than Never 

-- After-Acquired Evidence in Employment Discrimination Cases, 19 

EMPLOYEE REL. L.J. 193, 202-03 (1993) ("[A]fter-acquired evidence 

should be factored in crafting personnel policies. Foremost 

among the considerations is to ensure that applications and 

employee manuals expressly state that resumé fraud or application 

misrepresentations will result in suspension pending discharge. 

. . . Second, a prompt and thorough investigation of a 

complaint's discrimination charge should be conducted."); David 

D. Kadue & William J. Dritsas, The Use of After-Acquired Evidence 

in Employee Misconduct and Resume Fraud Cases, 1993 LAB. L.J. 

531, 531 [hereinafter Kadue & Dritsas, The Use of After-Acquired 

Evidence] (stating that when an employee sues for employment 

discrimination, commonly "the employer investigates the former 

employee's background with special care"); George D. Mesritz, 

"After-Acquired" Evidence of Pre-Employment Representations: An 

Effective Defense Against Wrongful Discharge Claims, 18 EMPLOYEE 

REL. L.J. 215, 215, 222-25 (1992) ("Management should respond to 

this favorable development [-- the judicial recognition of the 

after-acquired evidence doctrine --] by routinely searching for 

pre-employment misrepresentations as a potential defense in all 
38 

inquiry into the details of a plaintiff's pre- and post-hiring 

conduct, however, may chill the enthusiasm and frequency with 

which employment discrimination claims are pursued, even in cases 

where the victim of discrimination has nothing to hide, let alone 

cases where the potential plaintiff is not entirely blameless.0 

Placed in context of the general pervasiveness of résumé fraud 

and employee misconduct,0 the likely consequence of the wide-

 

discharge litigation. Employers in turn should maximize the 

probability that `after-acquired' evidence is available as a 

defense by revising employment applications to elicit even more 

specific information."); Robert M. Shea, Posttermination 

Discovery of Employee Misconduct: A New Defense in Employment 

Discrimination Litigation, 17 EMPLOYEE REL. L.J. 103, 103-04, 109 

(1991) [hereinafter Shea, Posttermination Discovery of Employee 

Misconduct] (explaining that Summers "gives employers a legal 

basis and, more importantly, a good reason for taking a broader 

approach to discovery in employment discrimination litigation" 

and advising employers to "scrutinize representations made by the 

plaintiff during the hiring process" and to look for "previously 

undiscovered misconduct"); William S. Waldo & Rosemary A. Mahar, 

Lost Cause and Found Defense: Using Evidence Discovered After an 

Employee's Discharge to Bar Discrimination Claims, 9 LAB. LAW. 31, 

32, 40-42 (1993) (advising defense counsel to "leave no stone 

unturned in ferreting out any evidence" of résumé fraud or 

employment misconduct by conducting "a thorough post-termination 

investigation"). 

0See Massey, 828 F. Supp. at 323 (reasoning that "the use of 

after acquired evidence to bar a discrimination claim in its 

entirety could cause employees who did something wrong in the 

past to quietly endure discriminatory treatment rather than 

complain, regardless of how long ago the misconduct occurred or 

its triviality"). Moreover, the inevitable "fishing expedition[] 

. . . for `minor, trivial or technical infractions,'" Washington, 

969 F.2d at 256 (quoting O'Driscoll v. Hercules, Inc., 745 F. 

Supp. 656 (D. Utah 1990)), might curtail the success of victims 

of employment discrimination in bringing lawsuits and thereby 

erode the effectiveness of Title VII and ADEA. See, e.g., 

McKennon, 9 F.3d at 540-41 & nn.1 & 3 (describing the employer's 

masterful use of after-acquired evidence). 

0By all accounts, résumé fraud is a serious and recurrent problem 

facing employers. See, e.g., Mitchell H. Rubinstein, The Use of 

Predischarge Misconduct Discovered After an Employee['s] 

Termination as a Defense in Employment Litigation, 24 SUFFOLK U.
39 

spread exploitation of after-acquired evidence will be underenforcement of Title VII and ADEA, and consequently underdeterrence 

of discriminatory employment practices.0

 This leads us to a final reason why liability is proper 

in a Title VII or ADEA after-acquired evidence case, namely, the 

other paramount objective of those statutes "`to make persons 

whole for injuries suffered on account of unlawful employment 

discrimination.'" Franks, 424 U.S. at 763, 96 S. Ct. at 1264 

(quoting Albemarle Paper, 422 U.S. at 418, 95 S. Ct. at 2372); 

see id. at 764, 96 S. Ct. at 1264 (stating that the plaintiff 

should be made "whole insofar as possible"); see Albemarle Paper, 

422 U.S. at 418-21, 95 S. Ct. at 2372-73; supra at Error! 

Bookmark not defined. n.Error! Bookmark not defined.. Of course, 

the corollary to the make-whole directive is that the protected 

 

L. REV. 1, 1 n.2 (1990); Shea, Posttermination Discovery of 

Employee Misconduct, 17 EMPLOYEE REL. L.J. at 403 n.3; Zemelman, 

The After-Acquired Evidence Defense, 46 STAN. L. REV. at 176 n.5; 

see also Douglas L. Williams & Julia A. Davis, Title VII Update 

-- Skeletons and a Double-Edged Sword, C669 A.L.I.-A.B.A. 303, 

305 (1991) ("At one time or another probably every employee 

commits an infraction at work and hopes that the boss never finds 

out."). 

0Some courts have tried to deal with the problem of 

underenforcement by requiring the fraud or misconduct to be 

material before accepting the employer's defense, see, e.g., 

O'Driscoll, 12 F.3d at 180, but the meaning of materiality has 

not been settled. For example, at least one court confronted 

with a boilerplate attestation clause in an employment 

application has held that the misrepresentation itself, whether 

material or not standing alone, became material by virtue of the 

clause, rendering the materiality requirement largely 

meaningless. See Milligan-Jensen, 975 F.2d at 303-04 & nn. 1 & 

2; cf. Johnson, 955 F.2d at 414 (holding that an employer's 

asserted actual reliance upon the plaintiff's misrepresentation 

made it material as a matter of law); Gilty, 919 F.2d at 1251 

(holding that a plaintiff's misrepresentation ipso facto rendered 

him unqualified for the job). 
40 

employee is not to be catapulted into a better position than he 

or she would have enjoyed had the employer not acted unlawfully. 

See Burdine, 450 U.S. at 259, 101 S. Ct. at 1096 ("Title VII 

. . . does not demand that an employer give preferential 

treatment 

to minorities or women."); cf. Mt. Healthy, 429 U.S. at 285-86, 

97 S. Ct. at 575. 

 Keeping in mind the aspiration, then, that the 

plaintiff should be left in the same position as he or she was in 

before the discrimination, the bottom line is straightforward. 

On the one hand, holding the employer liable and providing the 

victim appropriately fashioned remedies would restore the victim 

to his or her prior position, not a better one than had he or she 

not suffered from unlawful discrimination. On the other hand, 

barring all remedies would leave the victim in a worse position 

than had the employer not unlawfully discriminated against him or 

her (in which case the employee assumedly would still be 

employed), and elevates the employer to a superior position 

insofar as it lets the employer get off scot-free despite its 

blameworthy conduct. These two observations hold true especially 

in instances where the employer's discovery of the after-acquired 

evidence was brought about due to the legal proceedings 

instituted in response to the employer's wrongful acts, since in 

those cases, absent the discrimination, the employer may never 

have discovered the evidence (or at least not until some 

indeterminate future time). See Wallace, 968 F.2d at 1179-80; 
41 

Welch, 23 F.3d at WL at *3 (Arnold, J., dissenting);0 cf. John 

Cuneo, Inc., 298 N.L.R.B. 856, 856 (1990). In short, a major 

weakness of the Summers approach is that it does not restore a 

victim to the position he or she would have occupied but for the 

discrimination. 

6. Summary

 For all the foregoing reasons, we hold that afteracquired evidence is inadmissible, because irrelevant, at the 

liability stage of a cause of action brought under Title VII or 

ADEA. We do not rule out the potentiality that such evidence may 

 

0We think that Judge Arnold got the better of the argument in his 

dissent in Welch: 

I respectfully suggest that the court errs in 

concluding that if defendant can show that it would 

never have hired Mr. Welch but for his 

misrepresentation, then Mr. Welch will be in no worse 

position than he would have been but for the alleged 

illegal act. The crucial points are that the defendant 

did hire him and did not know of the facts that might 

have led to Mr. Welch's discharge until it discovered 

them because suit was filed against it. The defendant 

might never have learned of those facts, or it might 

have learned of them fortuitously at some later time. 

Until it did so, those facts could hardly provide an 

excuse for termination, since they could not have 

provided any part of the defendant's motive. If Mr. 

Welch is not compensated for losses suffered between 

the time he would have been fired on account of the 

discovery of relevant facts, he is not in the same 

position he would have been in but for a wrong committed against him, and the purpose of the protective 

legislation is entirely lost. 

 . . . The plaintiff does not seek to benefit 

from his misrepresentation, if any. He seeks simply to 

have the law applied to him in an evenhanded way. 

Id. at ____ *3. 
42 

serve as the foundation for a claim of fraud, conversion, or the 

like by the employer against the plaintiff in an appropriate 

forum, but only that it may not be introduced substantively for 

the purpose of defending against liability. We must accordingly 

reverse the district court's grant of summary judgment to 

Harleysville and remand for further consideration. 

B. The Remedies Stage

 Because the district court must proceed further with 

this case and may well have to reach the remedies stage, for the 

guidance of that court on remand we will make a few comments 

about the remedies facet of the case. We note in this regard 

that the questions of how the after-acquired evidence may be used 

harmoniously with Title VII's and ADEA's language and goals, and 

of what remedies should inure to a plaintiff in an after-acquired 

evidence case, seem to be far more stubborn than the liability 

issue. 

 First, after-acquired evidence of résumé and/or 

application fraud or employer misconduct on the job is relevant 

to at least some issues at the remedies stage (and hence is 

admissible at that point), even if it has surfaced after the 

employer's searching inquiry in the aftermath of the employer's 

unlawful conduct or in the course of its trial preparation.0 The 

 

0We observe that in a normal Title VII or ADEA case, evidence 

acquired before the adverse employment decision might, as a 

prophlactic measure, be inadmissible altogether if the plaintiff 

could show that the employer had a practice of thoroughly 

investigating the information provided in employment applications 

and interviews by, and of comprehensively reviewing on-the-job 
43 

court should, of course, be cautious lest the remedies evidence 

affect the liability verdict. 

 Second, at the remedies stage, the district court must 

bear in mind Title VII's and ADEA's two principal objects: 

deterrence and compensation. See Albemarle Paper, 422 U.S. at 

421, 95 S. Ct. at 2373; Griggs v. Duke Power Co., 401 U.S. 424, 

429-30, 91 S. Ct. 849, 853 (1971); supra at Error! Bookmark not 

 

performance of, only or primarily only the members of a protected 

class with the motive to discover flaws justifying an adverse 

employment action, for such a practice would probably contravene 

Title VII and ADEA. Assuming it were so, since the filing of the 

lawsuit would appear to be an activity protected to the same 

extent as membership in another protected class, see 42 U.S.C.A. 

§2000e-3(a) (1981) ("It shall be an unlawful employment practice 

for an employer to discriminate against any of his employees or 

applicants for employment . . . because he has opposed any 

practice made an unlawful employment practice by this subchapter, 

or because he has made a charge, testified, assisted, or 

participated in any manner in an investigation, proceeding, or 

hearing under this subchapter."); 29 U.S.C.A. § 623(d) (1985) 

(similar), it would seem to follow that the aforementioned 

defense strategy of investigating employees who file complaints 

with the intent to discover evidence retroactively justifying or 

excusing the adverse employment decision may itself violate Title 

VII and ADEA, and if so it might be contrary to the design of 

those statutes to allow the employer to benefit from (introduce) 

such evidence. 

 Accordingly, an argument could be made that such 

evidence should be excluded from consideration as the fruits of 

unlawful retaliation even in the remedies stage of a Title VII or 

ADEA suit. That is, if it were the case that the calculated 

discovery of after-acquired evidence (as opposed to, for example, 

its inadvertent or independent discovery) amounts to retaliation 

under Title VII or ADEA, although it is exceedingly unlikely that 

any economic damages would flow therefrom, it may very well be 

that any evidence so stained would have to be suppressed at the 

remedies stage of the proceedings, except perhaps to show that 

reinstatement would threaten the public health, safety, or 

welfare, or would otherwise violate a public policy on par with 

the one antithetical to employment discrimination. This 

argument, however, was not advanced in this case until oral 

argument, and we shall decline to further consider it. 
44 

defined. n.Error! Bookmark not defined.. Congress has from Title 

VII's inception expected courts to fashion remedies guided by the 

acts' twin central goals. See Franks, 424 U.S. at 763-64, 96 S. 

Ct. at 1263-64. To advance these goals, a district court is 

under the "`duty to render a decree which will so far as possible 

eliminate the discriminatory effects of the past as well as bar 

like discrimination in the future.'" Franks, 424 U.S. at 770, 96 

S. Ct. at 1267 (quoting Albemarle Paper, 422 U.S. at 418, 95 S. 

Ct. at 2372).0

 

0The same standard applies under ADEA. As we explained in 

Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977), cert. denied, 

436 U.S. 913, 98 S. Ct. 2254 (1978): 

 Monetary awards exacted from employers who 

practice unlawful discrimination serve two primary 

functions. First, the prospect of economic penalties 

more certainly deters illegal employment practice[s] 

than does exposure to injunctive relief or prospective 

equitable remedies such as reinstatement. Second, 

economic exactions recompense individuals for injuries 

inflicted by employers' discriminatory conduct. These 

prophylactic and compensatory purposes are the basis of 

most recent anti-employment discrimination legislation, 

including the ADEA and Title VII. Thus, the Supreme 

Court's mandate on the exercise of trial court's 

discretion in granting monetary relief in Title VII 

suits . . . is equally compelling in the context of 

ADEA actions . . . . 

 The make whole standard of relief should be the 

touchstone for the district courts in fashioning both 

legal and equitable remedies in age discrimination 

cases. Victims of discrimination are entitled to be 

restored to the economic position they would have 

occupied but for the intervening unlawful conduct of 

employers. 

Id. at 1237-38 (citations omitted). 
45 

 Third, we illustrate these points with respect to the 

most common remedy, backpay. The Supreme Court has laid down the 

general rule under Title VII that 

given a finding of unlawful discrimination, backpay 

should be denied only for reasons which, if applied 

generally, would not frustrate the central statutory 

purposes of eradicating discrimination throughout the 

economy and making persons whole for injuries suffered 

through past discrimination. 

Albemarle Paper, 422 U.S. at 421, 95 S. Ct. at 2373, quoted in

Franks, 424 U.S. at 771, 96 S. Ct. at 1267. We have applied the 

same standard to ADEA. See Rodriguez, 569 F.2d at 1238 (quoting 

Albemarle Paper as quoted supra). But some courts cut backpay 

off prematurely at the moment the employer obtains the afteracquired evidence. See, e.g., Kristufek v. Hussmann Foodservice 

Co., 985 F.2d 364 (7th Cir. 1993); Smith, 876 F.2d at 1319 n.2 

(dicta); cf. John Cuneo, 298 N.L.R.B. at 856. This formula is, 

however, inconsistent with the effectuation of the statutes' 

deterrent and compensatory purposes, and we favor the normal rule 

that, when otherwise appropriate, backpay should be awarded until 

the date of judgment. Accord Wallace, 968 F.2d at 1182; Massey, 

828 F. Supp. at 323. 

 We reach this result by considering the statutory 

policies at stake. Insofar as after-acquired evidence is 

uncovered during the legal dispute and would not have been 

discovered, at least for an indeterminate stretch of time, absent 

the employer's unlawful acts, the plaintiff would be left in a 

worse position because of the discrimination if the court were to 

make use of that evidence to limit the victim's remedies, and the 
46 

make-whole compensatory goal of the acts would not be reached. 

Confining backpay to the discovery date would also dilute the 

deterrent effect of Title VII and ADEA, an effect best promoted 

with an award of backpay, see supra (quoting Albemarle Paper). 

 On the other end of the scale weighs the policy of 

allowing employers free choice (primarily encroached on by 

reinstatement rather than by an award of backpay), see, e.g., 

Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 527 (3d 

Cir. 1992) (citing cases), and the difficulty in ignoring such 

evidence insofar as it could be read as condoning the employee's 

misbehavior, cf. Summers, 864 F.2d at 708 ("To argue . . . that 

this after-acquired evidence should be ignored is utterly 

unrealistic."). But the fact that courts will not turn a blind 

eye to employee fraud and misconduct is adequately demonstrated 

in cases where the employer in fact bases its adverse employment 

decision on the employee's wrongful actions, because then the 

evidence is fully considered at every stage of the dispute, and 

also perhaps in context of other remedies (like reinstatement) in 

after-acquired evidence cases. 

 There are occasions, of course, when after-acquired 

evidence is useful in measuring backpay: if the employer can 

somehow insulate its illegal actions from its discovery of the 

disfavorable evidence, it is free to act on it (keeping in mind 

the prohibition against retaliation, see supra at Error! Bookmark 

not defined. n.Error! Bookmark not defined.) to discipline its 

employee, as there would be no causation. One example is where 

the employer would have inevitably discovered the evidence in the 
47 

normal progression of things (that is, assuming no litigation).0 

Alternatively, the employer may happen upon the evidence 

completely independently of any investigation prompted by the 

discriminatory employment action or its aftermath, including the 

legal proceedings.0 Proof of either of these occurring would 

entitle an employer to cut off all further liability from the 

time the employer can establish with reasonable certainty the 

date of the inevitable or independent discovery, so long as the 

employer additionally shows that based upon that evidence it 

indeed would have taken the same employment action at that time. 

See Wallace, 968 F.2d at 1182 (ending backpay at the earlier of 

(i) the date of judgment, and (ii) the date the employer can show 

it would have discovered evidence, independently of the adverse 

employment decision and the ensuing litigation, which would have 

 

0See, e.g., Rodriguez, 431 U.S. at 403 n.9, 97 S. Ct. at 1897 n.9 

(allowing the company to prove at trial that the applicant "would 

not have been hired in any event"); Sabree, 921 F.2d at 405 

(reducing damages if the employer would have inevitably 

discovered that the plaintiff was ineligible for a transfer); 

Smallwood v. United Air Lines, Inc., 728 F.2d 614, 626-27 (4th 

Cir.) (holding that the plaintiff was not entitled to backpay 

because the employer would have inevitably discovered his prior 

misconduct and would not have hired him even had it not 

discriminated against him), cert. denied, 469 U.S. 832, 105 S. 

Ct. 120 (1984). But see Summers, 864 F.2d at 707 n.3 ("[T]he 

probability that Summers' transgressions would have been 

discovered in the absence of the trial is immaterial."). 

0See Gilty, 919 F.2d at 1249, 1255-56 (holding that a discharge 

was not retaliatory because a new police chief independently 

undertook a comprehensive review of all the city's officers' 

credentials); cf. Welch, 23 F.3d at WL at *3 (Arnold, J., 

dissenting) (referring to the defendant's "fortuitous" discovery 

of the evidence). 
48 

led it to take the same adverse action with respect to the 

employee); Massey, 828 F. Supp. at 324 (same).0

 Fourth, we must stress in terms of policy the 

importance of the background rule of employer free choice. The 

federal anti-employment discrimination laws were designed not to 

impinge directly upon employer free choice; that is, not to 

interfere unnecessarily with legitimate business operations and 

decisions. See Burdine, 450 U.S. at 259, 101 S. Ct. at 1096 

("[Title VII] was not intended to `diminish traditional 

management prerogatives.'" (quoting United Steelworkers v. Weber, 

442 U.S. 193, 207, 99 S. Ct. 2721, 2729 (1979)); Price 

Waterhouse, 490 U.S. at 242, 109 S. Ct. at 1786 (stressing that 

an "important aspect of [Title VII] is its preservation of an 

employer's remaining freedom of choice"). For example, the 

federal employment discrimination laws do not alter the 

employment-at-will doctrine except in limited respects. See

supra at 30 & n.Error! Bookmark not defined.. Their goal instead 

is to restore the victim of the employer's illegal conduct to the 

position he or she would have occupied absent the discrimination. 

 

0For example, if the inevitable or independent discovery would 

have preceded an applicant's hiring, probably no back pay would 

be due. See Smallwood, 728 F.2d at 626. By contrast, declaratory and injunctive relief as well as attorneys' fees, properly 

apportioned, might still be available. Moreover, in cases 

governed by the Civil Rights Act of 1991, the plaintiff might 

also be able to recover compensatory damages and, if the employer 

acted "with malice or with reckless indifference to the federally 

protected rights of an aggrieved individual," punitive damages, 

see Civil Rights Act of 1991, Pub. L. No. 102-166, § 102, 105 

Stat. 1072-73 (codified at 42 U.S.C.A. §1981a(a)(1), (b)(1) 

(Supp. 1994)), irrespective of inevitable or independent 

discovery. 
49 

Thus, where an equitable remedy, such as reinstatement, would be 

particularly invasive of the employer's "traditional management 

prerogatives," the after-acquired evidence may bar that remedy. 

Cf. supra at Error! Bookmark not defined. n.Error! Bookmark not 

defined.. 

 For the foregoing reasons, we will vacate the district 

court's order granting summary judgment to Harleysville, and 

remand the case to the district court for further proceedings 

consistent with this opinion.