2506 . Limitation on Remedies - After-Acquired Evidence
[ Name of defendant ] claims that after [he/she/ nonbinary pr onoun /it]
[discharged/refused to hir e] [ name of plaintiff ], [he/she/ nonbinary pr onoun /
it] discovered that [ name of plaintiff ] [ describe misconduct, e.g., had
pr ovided a false Social Security number ]. [ Name of defendant ] claims that
[he/she/ nonbinary pr onoun /it] would have [discharged/refused to hir e]
[ name of plaintiff ] anyway if [he/she/ nonbinary pr onoun /it] had known that
[ name of plaintiff ] [ describe misconduct ]. Y ou must decide whether [ name
of defendant ] has proved all of the following:
1. That [ name of plaintiff ] [ describe misconduct ];
2. That [ name of plaintiff ]’s misconduct was suf f iciently severe that
[ name of defendant ] would have [discharged/refused to hire] [him/
her/ nonbinary pronoun ] because of that misconduct alone had
[ name of defendant ] known of it; and
3. That [ name of defendant ] would have [discharged/refused to hire]
[ name of plaintiff ] for [his/her/ nonbinary pronoun ] misconduct as a
matter of settled company policy.
[If you find that [ name of defendant ] has proved that [ name of plaintiff ]
[ describe misconduct ] and that had [ name of defendant ] known of the
misconduct earlier , [he/she/ nonbinary pronoun /it] would have [discharged/
refused to hir e] [ name of plaintiff ] as requir ed by the elements above,
then [ name of plaintiff ] may recover damages only for any time befor e the
date on which [ name of defendant ] discovered the misconduct. [[ Name of
defendant ] must prove the date of discovery if it is contested.]]
New September 2003; Revised June 2016, December 2016, May 2019
Directions for Use
The doctrine of after-acquired evidence refers to an employer’ s discovery , after an
allegedly wrongful termination of employment or refusal to hire, of information that
would have justified a lawful termination or refusal to hire. ( Salas v . Sierra
Chemical Co. (2014) 59 Cal.4th 407, 428 [173 Cal.Rptr .3d 689, 327 P .3d 797].)
There is some uncertainty as to whether or not it is an equitable doctrine. (Compare
Thompson v . T racor Flight Systems, Inc. (2001) 86 Cal.App.4th 1 156, 1 173 [104
Cal.Rptr .2d 95] [doctrine is the basis for an equitable defense related to the
traditional defense of “unclean hands,” italics added] with Salas, supra, 59 Cal.4th
at p. 428 [omitting “equitable”].) If it is an equitable doctrine, then the fact-finding
in the elements of the instruction would be only advisory to the court, or the
elements could be found by the court itself as the trier of fact. (See Thompson,
supra, 86 Cal.App.4th at p. 1 173; see also Hoopes v . Dolan (2008) 168 Cal.App.4th
146, 156 [85 Cal.Rptr .3d 337] [jury’ s factual findings are purely advisory because,
on equitable causes of action, the judge is the proper fact finder].)
After-acquired evidence is not a complete defense to liability , but may foreclose
otherwise available remedies. ( Salas, supra, 59 Cal.4th at pp. 430−431.) Give the
optional last paragraph if the court decides to allow the jury to award damages or to
make a finding on damages. Add the last sentence of the paragraph if the date on
which the defendant discovered the after-acquired evidence is contested.
After-acquired evidence cases must be distinguished from mixed motive cases in
which the employer at the time of the employment action has two or more motives,
at least one of which is unlawful. (See Salas supra, 59 Cal.4th at p. 430; CACI No.
2512, Limitation on Remedies - Same Decision .)
Sources and Authority
• “In general, the after-acquired-evidence doctrine shields an employer from
liability or limits available relief where, after a termination, the employer learns
for the first time about employee wrongdoing that would have led to the
discharge in any event. Employee wrongdoing in after -acquired-evidence cases
generally falls into one of two categories: (1) misrepresentations on a resume or
job application; or (2) posthire, on-the-job misconduct.” ( Camp v . Jeffer ,
Mangels, Butler & Marmar o (1995) 35 Cal.App.4th 620, 632 [41 Cal.Rptr .2d
• “The after-acquired-evidence doctrine serves as a complete or partial defense to
an employee’ s claim of wrongful discharge . . . T o invoke this doctrine, ‘. . .
the employer must establish “that the wrongdoing was of such severity that the
employee in fact would have been terminated on those grounds alone if the
employer had known of it” . . . [T]he employer . . . must show that such a
firing would have taken place as a matter of “settled” company policy .’ ”
( Murillo v . Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 842, 845-846 [77
Cal.Rptr .2d 12], internal citations omitted.)
• “Where an employer seeks to rely upon after-acquired evidence of wrongdoing,
it must first establish that the wrongdoing was of such severity that the employee
in fact would have been terminated on those grounds alone if the employer had
known of it at the time of the discharge.” ( McKennon v . Nashville Banner
Publishing Co. (1995) 513 U.S. 352, 362-363 [1 15 S.Ct. 879, 130 L.Ed.2d
• “Courts must tread carefully in applying the after-acquired-evidence doctrine to
discrimination claims . . . . Where, as here, the discriminatory conduct was
pervasive during the term of employment, therefore, it would not be sound
public policy to bar recovery for injuries suf fered while employed. In applying
the after-acquired-evidence doctrine, the equities between employer and
employee can be balanced by barring all portions of the employment
discrimination claim tied to the employee’ s discharge.” ( Murillo , supra , 65
Cal.App.4th at pp. 849-850.)
• “As the Supreme Court recognized in McKennon , the use of after-acquired
CACI No. 2506 F AIR EMPLOYMENT AND HOUSING ACT
evidence must ‘take due account of the lawful prerogatives of the employer in
the usual course of its business and the corresponding equities that it has arising
from the employee’ s wrongdoing.’ W e appreciate that the facts in McKennon
. . . presented a situation where balancing the equities should permit a finding
of employer liability - to reinforce the importance of antidiscrimination
laws - while limiting an employee’ s damages - to take account of an employer ’ s
business prerogatives. However , the equities compel a dif ferent result where an
employee who is disqualified from employment by government-imposed
requirements nevertheless obtains a job by misrepresenting the pertinent
qualifications. In such a situation, the employee should have no recourse for an
alleged wrongful termination of employment.” ( Camp , supra , 35 Cal.App.4th at
pp. 637-638, internal citation omitted.)
• “W e decline to adopt a blanket rule that material falsification of an employment
application is a complete defense to a claim that the employer , while still
unaware of the falsification, terminated the employment in violation of the
employee’ s legal rights.” ( Cooper v . Rykoff-Sexton, Inc. (1994) 24 Cal.App.4th
614, 617 [29 Cal.Rptr .2d 642].)
• “The doctrine [of after-acquired evidence] is the basis for an equitable defense
related to the traditional defense of ‘unclean hands’ . . . [¶] In the present case,
there were conflicts in the evidence concerning respondent’ s actions, her
motivations, and the possible consequences of her actions within appellant’ s
disciplinary system. The trial court submitted those factual questions to the jury
for resolution and then used the resulting special verdict as the basis for
concluding appellant was not entitled to equitable reduction of the damages
award.” ( Thompson, supra, 86 Cal.App.4th at p. 1 173.)
• “By definition, after-acquired evidence is not known to the employer at the time
of the allegedly unlawful termination or refusal to hire. In after-acquired
evidence cases, the employer ’ s alleged wrongful act in violation of the FEHA ’ s
strong public policy precedes the employer ’ s discovery of information that
would have justified the employer ’ s decision. T o allow such after-acquired
evidence to be a complete defense would eviscerate the public policies embodied
in the FEHA by allowing an employer to engage in invidious employment
discrimination with total impunity .” ( Salas, supra , 59 Cal.4th at p. 430.)
• “In after-acquired evidence cases, therefore, both the employee’ s rights and the
employer ’ s prerogatives deserve recognition. The relative equities will vary from
case to case, depending on the nature and consequences of any wrongdoing on
either side, a circumstance that counsels against rigidity in fashioning appropriate
remedies in those actions where an employer relies on after-acquired evidence to
defeat an employee’ s FEHA claims.” ( Salas, supra , 59 Cal.4th at p. 430.)
• “Generally , the employee’ s remedies should not afford compensation for loss of
employment during the period after the employer ’ s discovery of the evidence
relating to the employee’ s wrongdoing. When the employer shows that
information acquired after the employee’ s claim has been made would have led
to a lawful discharge or other employment action, remedies such as
F AIR EMPLOYMENT AND HOUSING ACT CACI No. 2506
reinstatement, promotion, and pay for periods after the employer learned of such
information would be ‘inequitable and pointless,’ as they grant remedial relief
for a period during which the plaintif f employee was no longer in the
defendant’ s employment and had no right to such employment.” ( Salas, supra ,
59 Cal.4th at pp. 430−431.)
• The remedial relief generally should compensate the employee for loss of
employment from the date of wrongful discharge or refusal to hire to the date on
which the employer acquired information of the employee’ s wrongdoing or
ineligibility for employment. Fashioning remedies based on the relative equities
of the parties prevents the employer from violating California’ s FEHA with
impunity while also preventing an employee or job applicant from obtaining lost
wages compensation for a period during which the employee or applicant would
not in any event have been employed by the employer . In an appropriate case, it
would also prevent an employee from recovering any lost wages when the
employee’ s wrongdoing is particularly egregious.” ( Salas, supra , 59 Cal.4th at p.
431, footnote omitted.)
Secondary Sources
3 W itkin, Summary of California Law (1 1th ed. 2017) Agency and Employment,
Chin et al., California Practice Guide: Employment Litigation Ch. 7-A, T itle VII and
the California Fair Employment and Housing Act , ¶¶ 7:930-7:932 (The Rutter
Chin et al., California Practice Guide: Employment Litigation Ch. 16-H, Other
Defenses - After-Acquir ed Evidence of Employee Misconduct , ¶¶ 16:615-16:616,
16:625, 16:635-16:637, 16:647 (The Rutter Group)
1 W rongful Employment T ermination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.107
2 W ilcox, California Employment Law , Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws , § 41.92 (Matthew Bender)
1 1 California Forms of Pleading and Practice, Ch. 1 15, Civil Rights: Employment
Discrimination , § 1 15.54[2] (Matthew Bender)
California Civil Practice: Employment Litigation § 2:88 (Thomson Reuters)
CACI No. 2506 F AIR EMPLOYMENT AND HOUSING ACT
Page last reviewed May 2024
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