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

McKennon v. Nashville Banner Publishing reconciles the deterrent and compensatory purposes of employment-discrimination law with legitimate consequences for serious misconduct discovered after termination.

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. Backpay generally runs from the unlawful discharge to the date the new information was discovered, subject to 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.
• Require proof of an actual would-have-fired rule and practice.
• Identify the date the employer discovered the misconduct.
• Analyze backpay, reinstatement, and front pay separately.