UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: August 2, 1994.
NANCY MARDELL, APPELLANT
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).
Before: Becker, Nygaard, Circuit Judges, and Yohn, District Judge*fn*
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 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 resume 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.*fn1 We will therefore reverse the district court's order granting summary judgment to Harleysville, and remand the case for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY*fn2
Harleysville hired Mardell as a Branch Life Manager in February 1988 to manage insurance agents.*fn3 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, Mardell's direct supervisor and Harleysville's senior vice-president 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 co-workers 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 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 resume 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 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 resume. Mardell had listed in the "employment history" section of the application form and the "professional experience" section of her resume 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 averred that he had relied on Mardell's application and resume 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 after-acquired 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 resume 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 prima facie case of sex and/or age discrimination. This appeal followed (A 5).*fn4
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 mixed-motives cases.*fn5 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), as embellished by Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981) and St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 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. 1775, 104 L. Ed. 2d 268 (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.*fn6
B. Other Circuits' Approaches to After-Acquired Evidence
The courts of appeals have grouped into two primary (albeit splintered) camps regarding the relevancy of after-acquired evidence of resume and/or application fraud or employee misconduct on the job.*fn7
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,*fn8 State Farm moved for summary judgment to diminish 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 categories of cases: resume and/or application fraud cases, and misconduct on the job cases. In a case of resume 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.*fn9 See O'Driscoll v. Hercules, Inc., 12 F.3d 176, 177-78 (10th Cir. 1994) (expanding the Summers holding from misconduct to after-acquired resume 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 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);*fn10 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, 121 L. Ed. 2d 193, 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,*fn11 allows after-acquired evidence to come in only at the remedies stage to slim down the relief available to the plaintiff.*fn12 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 n.), 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 availability of the standard remedies in after-acquired evidence cases.*fn13
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 n., discloses why after-acquired evidence cannot be a defense to liability. What sets an after-acquired evidence case far apart from a mixed-motives case 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 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, 79 L. Ed. 2d 741 (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.
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 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).*fn14 That argument, however, is at odds with Supreme Court precedent.
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, 57 L. Ed. 2d 957 (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, 75 L. Ed. 2d 403 (1978).*fn15 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.*fn16 In other words, the 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. § 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.
Reasoning that the plaintiff suffered no legal injury from invidious discrimination when after-acquired evidence reveals resume 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.*fn17 Accord Welch, 23 F.3d at WL at *4 (Arnold, J., Dissenting).
The rationale might have a stronger bite to it were the only injury to the victim the adverse employment action per se ;*fn18 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 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.*fn19 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 anti-discrimination 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 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 n.; 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, 98 L. Ed. 873 (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 ("If the employer has 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 at-will employment, meaning that the employee is presumptively not entitled to the job, irrespective of resume 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.*fn20 Thus, if entitlement to the job were a 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, 39 L. Ed. 2d 147 (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.
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.*fn21 A plaintiff in an employment-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.*fn22
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 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, 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.*fn23 Unfortunately, the Summers approach disregards that canon of construction and frustrates the paramount objective of Title VII and ADEA, to deter violations of the law.*fn24 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 provides the spur or catalyst which causes employers . . . to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far 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., 128 L. Ed. 2d 229, 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, 91 L. Ed. 2d 466 (1986) (plurality) (section 1983) (stating that "the damages a plaintiff recovers contribute significantly to the deterrence of civil rights violations in the future").*fn25
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.*fn26 The prospect of a defendant's thorough 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.*fn27 Placed in context of the general pervasiveness of resume fraud and employee misconduct,*fn28 the likely consequence of the widespread exploitation of after-acquired evidence will be underenforcement of Title VII and ADEA, and consequently underdeterrence of discriminatory employment practices.*fn29
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 n.. Of course, the corollary to the make-whole directive is that the protected 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; Welch , 23 F.3d at WL at *3 (Arnold, J., Dissenting);*fn30 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.
For all the foregoing reasons, we hold that after-acquired 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 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 resume 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.*fn31 The 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, 28 L. Ed. 2d 158 (1971); supra at n.. 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).*fn32
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 after-acquired 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 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 n.) to discipline its employee, as there would be no causation. One example is where the employer would have inevitably discovered the evidence in the normal progression of things (that is, assuming no litigation).*fn33 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.*fn34 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 led it to take the same adverse action with respect to the employee); Massey, 828 F. Supp. at 324 (same).*fn35
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, 443 U.S. 193, 207, 99 S. Ct. 2721, 2729, 61 L. Ed. 2d 480 (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 & n.. 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. 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 n..
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.