“No one in the office believes her,” “he stole from the company,” “she may have called in sick, but she really went away for a long weekend,” “he lied on his employment application,” “he submitted false expense reports” — examples of remarks made by the coworkers or managers of a former employee who has filed a lawsuit alleging wrongful discharge. But what is the significance of this information? Which pieces of information can be used to defend against claims of harassment or discrimination and how can it be used?

The remedial statutes for addressing workplace discrimination — e.g., the New Jersey Law Against Discrimination and its federal counterpart, Title VII — provide that a successful plaintiff may be awarded, among other things, damages in the form of reinstatement, back pay and front pay. These are generally referred to as equitable or economic damages because they are designed to place the plaintiff in the same economic position as she would have been had the discrimination or harassment not occurred. Thus, for example, if an employee was terminated for discriminatory reasons and thereafter accepted a position paying $10,000 less per year and the case proceeded to trial three years later, then a jury could award the plaintiff three years of back pay ($30,000) and front pay for a reasonable period of time for the plaintiff to re-establish her rightful place in the job market — hypothetically, an additional two years ($20,000) — for a total of $50,000. These equitable damages may be significantly reduced by the company’s discovery of the employee’s wrongful conduct while she was still working for the company. The post-litigation discovery of information concerning a former employee’s on-the-job misconduct is called after-acquired evidence.

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