After-Acquired Evidence: What Should Arbitrators and Courts Do After Misco, McKennon and Gilmer?
Robert N. Covington
AbstractIn its 1987 Misco decision, the Supreme Court indicated that arbitrators under collective bargaining agreements have broad discretion to reject "after-acquired" evidence. In its 1995 McKennon decision, however, the Court decided that the courts must accept such evidence in cases brought under the Age Discrimination in Employment Act. Arbitrators considering the impact of McKennon on their procedures must first recognize that the "after-acquired" label is a misnomer. They should focus not so much on when evidence is acquired as on the policies and purposes underlying the arbitration systems in which they function. One probable result is that arbitrators appointed under individual contracts of employment are more likely to admit this evidence than those appointed under collective agreements.
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