The Eleventh Circuit has stated that application of the after-acquired evidence doctrine as a complete defense is too rigid and that it produces harsh, inequitable results. At the same time, the Eleventh Circuit has voted to rehear the case setting forth this view. Until the rehearing, the Eleventh Circuit's principles are sound.13 Specifically, the Eleventh Circuit has criticized Summers as being antithetical to the principal purposes of Title VII which are to achieve equality of employment opportunity and make whole, so far as is possible, the individual or class affected by the discrimination. The Eleventh Circuit and arbitral forums, such as the National Labor Relations Board (hereinafter NLRB) and the Equal Employment Opportunity Commission (hereinafter EEOC), have applied after-acquired evidence as a partial defense which will bar an employee's reinstatement, but will award limited injunctive and back pay relief.
Note, Employee Dishonesty and the After-Acquired Evidence Doctrine: Why Honesty Is the Best Policy, 42 Clev. St. L. Rev. 539 (1994)