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Judicial decisions.

Employee screening. According to according to
1. As stated or indicated by; on the authority of: according to historians.

2. In keeping with: according to instructions.

 a decision by the U.S. Court of Appeals for the Fourth Circuit, a company can be sued by an employee for discrimination even if the company later discovers that the employee lied about his or her qualifications during the interview process.

The decision overturns a district court ruling that granted the company summary judgment (a ruling on evidence without a trial). The summary judgment was based on after-acquire evidence - incriminating in·crim·i·nate  
tr.v. in·crim·i·nat·ed, in·crim·i·nat·ing, in·crim·i·nates
1. To accuse of a crime or other wrongful act.

 information discovered after a suit has been filed or an employee discharged - that the plaintiff lied to obtain her position at the company and, therefore, would not have been hired if the truth had been known. (See "Legal Reporter," January 1994.)

Marie Russell held marketing positions at several companies after obtaining a bachelor's degree in marketing from Pennsylvania State University Pennsylvania State University, main campus at University Park, State College; land-grant and state supported; coeducational; chartered 1855, opened 1859 as Farmers' High School.  and a master's degree master's degree
An academic degree conferred by a college or university upon those who complete at least one year of prescribed study beyond the bachelor's degree.

Noun 1.
 in business administration and marketing from George Washington University George Washington University, at Washington, D.C.; coeducational; chartered 1821 as Columbian College (one of the first nonsectarian colleges), opened 1822, became a university in 1873, renamed 1904. . In 1986, Russell was hired as the marketing manager for Management Engineers, Inc., (MEI). Her supervisor, Peter Kauffman, the president of MEI, testified that Russell had been an exemplary employee.

In 1989, an economic crisis caused MEI to lay off several employees, including Russell. However, Kauffman retained Russell on a contract basis for approximately twenty hours per week at $25 an hour. Hoping MEI would be able to hire her back, Russell continued working part-time for MEI and consulting for several other firms until 1990, when she applied for a job at Microdyne Corporation.

On her application for a marketing assistant position at Microdyne, Russell requested an annual salary of $40,000, indicated MEI as a current employer, and reported her current salary as "$25/hr-50k." Russell requested that Microdyne not contact MEI because she still hoped that the company might have the resources to rehire Re`hire´   

v. t. 1. To hire again.
 her and she did not want the company to know she was looking for Looking for

In the context of general equities, this describing a buy interest in which a dealer is asked to offer stock, often involving a capital commitment. Antithesis of in touch with.
 another job.

In later interviews with Microdyne personnel, Russell made it clear that her employment with MEI was part-time only and that Microdyne was now free to contact MEI. Microdyne offered Russell the position at a starting salary of $60,000.

Russell kept a diary while employed at Microdyne and entered her observations and comments as evidence to the district court judge. While the details of her experiences were not revealed, the court opinion stated that "if true, the behavior of all the individuals involved, all senior personnel of the company, from the president down, was crude and reprehensible rep·re·hen·si·ble  
Deserving rebuke or censure; blameworthy. See Synonyms at blameworthy.

[Middle English, from Old French, from Late Latin repreh

Though Russell received praise from many members of senior management at Microdyne, her applications for promotion were met with sexual requests from her superiors. Similar evaluations and raise requests were met with sexually explicit comments or indications that, as a female, she would not be allowed to advance in the company despite her successful job performance.

In February 1993, while still employed at Microdyne, Russell sued the company for sexual harassment sexual harassment, in law, verbal or physical behavior of a sexual nature, aimed at a particular person or group of people, especially in the workplace or in academic or other institutional settings, that is actionable, as in tort or under equal-opportunity statutes.  and sexual discrimination.

During its internal investigation, Microdyne discovered - allegedly for the first time - that Russell had misrepresented herself on her resume by insinuating in·sin·u·at·ing  
1. Provoking gradual doubt or suspicion; suggestive: insinuating remarks.

2. Artfully contrived to gain favor or confidence; ingratiating.
 that she was employed by MEI full time. Microdyne filed a motion for summary judgment motion for summary judgment n. a written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on recorded (testimony outside court) affidavits (or declarations under penalty of perjury), depositions, admissions of fact, answers , claiming that, had the company known this fact, it would not have hired Russell.

Attorneys for Russell opposed the motion, claiming that the company's assertions were not new and that she did not attempt to hide her employment history. Russell also questioned whether the alleged crime of misrepresentation misrepresentation

In law, any false or misleading expression of fact, usually with the intent to deceive or defraud. It most commonly occurs in insurance and real-estate contracts. False advertising may also constitute misrepresentation.
 would have dissuaded Microdyne from hiring her.

The district court granted Microdyne summary judgment, stating that Russell had lied on her application and, therefore, could not proceed with her claims.

Russell appealed. The appeals court postponed hearing the case, pending a U.S. Supreme Court decision in McKennon v. Nashville Banner Publishing. (See "Legal Reporter," March 1995.)

Based on the Supreme Court ruling and the evidence in the case, the appeals court found that Microdyne could be sued for harassment and discrimination despite the after-acquire evidence.

According to David Nagle, employment law attorney with LeClair, Ryan, Joynes, Epps & Fra of Richmond, Virginia, the case reinforces the Supreme Court decision and emphasizes the need for thorough preemployment investigations. Because of the Supreme Court decision, says Nagle, employers may no longer rely on after-acquire evidence as insulation from discrimination claims, nor can attorneys be confident of helping the defendant's position by presenting employee wrongdoings discovered after a discrimination case has been filed. (Russell v. Microdyne Corporation, United States Court of Appeals for the Fourth Circuit The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia with appellate jurisdiction over the district courts in the following districts:
  • District of Maryland
  • Eastern District of North Carolina
, No. 93-1895, 1995.)

For information on or copies of the preceding case, contact the clerk of a local law library.
COPYRIGHT 1995 American Society for Industrial Security
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1995 Gale, Cengage Learning. All rights reserved.

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Title Annotation:Legal Reporter; employment discrimination cases
Author:Anderson, Teresa
Publication:Security Management
Date:Dec 1, 1995
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Next Article:Individual liability in discrimination cases.

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