A new defense to employment discrimination claims has gained acceptance in the lower courts. Employers who allegedly have discriminated against their employees because of race, sex or age are winning judgments on the basis of after-acquired evidence of employee misconduct. The evidence is “after-acquired” in the sense that the misconduct was unknown to the employer at the time the alleged discrimination occurred but was acquired later, often through the use of discovery devices in the employee's discrimination action. Lower courts have accepted the proposition that if the employer would have discharged the plaintiff on the basis of the after-acquired evidence, then the defendant is not liable for employment discrimination, and the plaintiff, accordingly, is entitled to no relief.

This Article criticizes the approach to the after-acquired evidence defense that is emerging in the lower courts. The Article rejects the premise that a plaintiff must be “fire proof” in order to prevail in an employment discrimination action. It argues that after-acquired evidence of a plaintiff's misconduct should have no impact on an employer's liability for discrimination. In liability determinations, the focus should be on what the employer actually did and not on what the employer might have done had it not discriminated. Discriminatory conduct causes harm and deserves legal condemnation even when the conduct would have been justifiable on other grounds.