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Sometimes complainants use "self-help" techniques that they think will help their discrimination cases,
but which actually hurt their cases later. For
example, courts have held that complainants who have falsified employment
records, or taken restricted employment records without authorization, may
not be entitled to full damages or reinstatement. There is a concept in
discrimination law that "after acquired evidence" of employee wrongdoing
can limit recovery or reinstatement even if the employee was discriminated
against. Employer attorneys usually look for "after acquired evidence" during
their discovery on employment discrimination complaints. Other complainants have
tape recorded conversations not knowing that the
recordings may be inadmissible as evidence if they were made in violation of
law. For example, in California it is unlawful to record a confidential
conversation without the permission of all participants (Cal. Penal Code 632).
Oregon law prohibits recording an in-person conversation, unless all
participants are informed (ORS 165.540(1)(c)), and prohibits recording a telephone or radio communication unless one participant gives consent
(ORS 165.540(1)(a), and 165.543(1)). There may be limited circumstances when tape recorded
conversations may be admissible in California and Oregon courts, for example if the recorded
call came from a state where it was legal to record the conversation. It is permissible in some
other states
to record conversations if only one participant agrees. Complainants should be cautious about
using questionable "self-help" techniques to obtain evidence. Complainants
should consider other legal ways to preserve evidence, and obtain legal
advice from an attorney if they feel that the evidence is important.
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