Employment Litigation · Primary-source case analysis

McKennon: After-Acquired Misconduct Limits Remedies but Does Not Erase Discrimination

By Aneeta Mishra and Timothy Chan

Published May 3, 2026 · Updated October 17, 2026

Decision: McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995).

McKennon v. Nashville Banner Publishing was decided by the Supreme Court on January 23, 1995. It explains why misconduct discovered after discharge can limit remedies without wiping out an earlier age-discrimination violation.

The employer discovered documents during litigation

Christine McKennon alleged age discrimination. During her deposition, she admitted copying confidential company documents before discharge. The employer argued that it would have fired her for that conduct and obtained summary judgment barring every remedy.

Later evidence does not undo the original violation

If the discharge was discriminatory when made, misconduct unknown to the employer could not have motivated that decision. Eliminating all relief would undermine the ADEA’s objectives of compensating victims and deterring unlawful discrimination.

The evidence can change the remedy

An employer that proves the misconduct was severe enough that it actually would have terminated the worker ordinarily defeats reinstatement and front pay. The starting point for calculating backpay is the period from the unlawful discharge to discovery of the new information. The court may adjust relief for extraordinary equitable circumstances.

The employer carries a meaningful proof burden

The employer must establish more than that the conduct was undesirable; it must show the employee in fact would have been discharged on that ground alone. The Court reversed and remanded for a remedy analysis under that standard.

Key takeaways

• Separate liability at the time of discharge from later remedy evidence.
• Confirm the employer must prove—not merely allege—that it would have discharged for the misconduct alone.
• Identify the date the employer discovered the misconduct.
• Analyze backpay, reinstatement, and front pay separately.