THE AFTER-ACQUIRED EVIDENCE DEFENSE TO EMPLOYMENT DISCRIMINATION CLAIMS - THE PRIVATIZATION OF TITLE-VII AND THE CONTOURS OF SOCIAL-RESPONSIBILITY

The recently developed after-acquired evidence defense allows employers to escape liability or mitigate damages in Title VII claims by introducing evidence of an employee's wrongdoing that the employer discovered after its employment decision. Cheryl Krause Zemelman analyzes this controversial defense by placing its development within a larger shift in Title VII jurisprudence. She argues that the defense took hold as courts gradually recharacterized Title VII as merely providing a private tort remedy, rather than redressing broad social harms as Congress originally intended and recently reiterated in the Civil Rights Act of 1991. The defense undercuts the purposes of Title VII by allowing employers to avoid responsibility in those cases where discrimination was in fact a motivating factor in their employment decisions. After arguing that recent EEOC guidelines do not go far enough to restrict the defense, Ms. Zemelman suggests additional guidelines for judicial treatment of after-acquired evidence that will better serve Title VII's goals.