What can happen if my business does not preserve records during an EEOC investigation?

At the first sign of an EEOC charge of discrimination being filed against a Florida business, most experienced labor & employment counsel will promptly issue the company a “litigation hold” letter which directs the business to retain and suspend all normal destruction practices of any potentially relevant records and other evidence. The letter also usually requires the employer to take affirmative steps to assure that such records and evidence are preserved without alteration. 

This means not destroying any evidence, including electronically stored information (ESI) which often requires a business to suspend its routine electronic record deletion which may be set up on email and computer programs. Although lawyers can later argue about whether documents and ESI need to actually be turned over, if the business fails to preserve the documents/ESI, then the other side can argue that it was destroyed because it must have hurt the employer’s case. This is a very damaging thing with which an employer can be branded.

This issue was recently in the news when the EEOC filed a motion to impose sanctions against an employer for losing or destroying evidence in a religious discrimination and retaliation case. Although the employer denied any wrongdoing, it was in the process of paying its lawyers to respond to the EEOC’s motion. Equal Employment Opportunity Commission v. JBS USA, LLC, 1:10-cv-02103.

In the original lawsuit, the EEOC claimed that the employer refused to allow Somali Muslim employees to pray according to their religious beliefs. The lawsuit also claimed that the company retaliated against Muslim employees by disciplining them or firing them when they requested their evening break be moved so that they could break their fast and pray closer to sundown during Ramadan. Ramadan is a holy month in the Islamic faith which requires daytime fasting.

Currently, the EEOC is alleging that the employer lost or destroyed documents relevant to the litigation.

During the litigation, the employer took the position that allowing prayer breaks for Muslim employees would cause production downtime and slowdown. According to the EEOC’s motion for sanctions, not until discovery was reopened, did the EEOC learn about “daily records that track such information – ‘Down Time Reports’ and ‘Clipboards.’” However, years after the EEOC charge of discrimination was first filed, the EEOC claimed that the employer had lost or destroyed more than six years of records, with the exception of a handful of records.

The EEOC argued to the Court that because the employer failed to preserve the records of actual downtime and slowdowns, the EEOC will be unable to effectively challenge that testimony while the employer “can freely offer such testimony without fear of impeachment through record of actual downtime.”

The EEOC claimed that the employer “concealed the existence of documents and its destruction appears, at the very least, grossly negligent, or more likely, deliberate.”

You can find out what happened and read the entire article for free at What can happen if my business does not preserve records during an EEOC investigation?