Judicial decisions.

Employee screening. According to 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 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 and a master's degree in business administration and marketing from George Washington University. 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 her and she did not want the company to know she was looking for 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."

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 and sexual discrimination.

During its internal investigation, Microdyne discovered - allegedly for the first time - that Russell had misrepresented herself on her resume by insinuating that she was employed by MEI full time. Microdyne filed a motion for summary judgment, 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 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, No. 93-1895, 1995.)

For information on or copies of the preceding case, contact the clerk of a local law library.