You Lied on Your Resume – So What?

| Jason M. Knott

We previously covered former Yahoo! CEO Scott Thompson, who may have cost himself $10 million by inflating his credentials in a resume.   Resume problems are not a one-off in the world of Suits by Suits.

One way in which untruths on resumes can come to light is through a defense called the after-acquired evidence doctrine, which employers can assert in response to wrongful termination or discrimination claims.  

The after-acquired evidence doctrine allows an employer to argue that even if it fired the executive for the wrong reason, it would have fired her any way for the right reason based on evidence it learned after termination.  Typically, this is something the employer uncovers during litigation brought by the executive.

In one noteworthy case, when an employee sued his company for passing him over for a promotion , the company found evidence that he had falsified his resume.  Despite this evidence, it lost, both at trial and on appeal.  Shattuck v. Kinetic Concepts, Inc., 49 F.3d 1106 (5th Cir. 1995)

The plaintiff, Shattuck, had been Kinetic’s Director of National Account Sales.  A younger employee was promoted over him, and according to Shattuck, his boss explained that the young go-getter was better able to commit the hours needed for the cause.  Shattuck sued under the Age Discrimination in Employment Act, but an unpleasant surprise was in store for him.  Kinetic learned “on the eve of trial” that he had lied on his resume, saying that he was a college graduate when in fact he had only made it through a semester.  It maintained that it would have never hired him if it had known of his lack of credentials and that it would have immediately fired him if it had figured it out. 

Despite Shattuck’s dishonesty, however, the jury still found for him on his discrimination claim.  Then, the Fifth Circuit affirmed the verdict, rejecting Kinetic’s argument that it should prevail since it would never have hired Shattuck but for the lie.  It stated that the “pertinent inquiry . . . is whether the employee would have been fired upon discovery of the wrongdoing, not whether he would have been hired in the first instance.”  Kinetic, said the court, “did not establish that it would have discharged Shattuck upon discovering that he was not a college graduate.”

As Shattuck shows, it’s possible for an employee to overcome after-acquired evidence that he lied on his resume.  Possible, but not pleasant – and not ideal for someone who wants to sway a jury to his side.