Category Archives: Age Discrimination

Spoliation and the Dangers of Failing to Preserve Evidence

Contributed by Carlos Arévalo, September 12, 2017

In a case pending in the U.S. District Court for the Southern District of Florida, Equal Employment Opportunity Commission v. GMRI Inc., the EEOC recently argued that a restaurant chain acted in bad faith, and should be sanctioned for “spoliation” of evidence because, the EEOC claimed, it intentionally destroyed hiring data. It argued the destruction of evidence “prejudice[d] EEOC by opening the door for GMRI to attack EEOC’s statistical and anecdotal evidence, and to rely upon otherwise impermissible [defendant] favorable proxy data.”

investigate documents

Investigate and analyze magnifying glass and stack of documents

Among the allegedly destroyed evidence are emails the EEOC claimed would have established the fact that the managers for the defendant were instructed to hire “young.” In addition, the defendants are said to have intentionally shredded paper applications and interview booklets used for new restaurant openings that would have supported the EEOC’s allegations that the company had a pattern or practice of failing to hire applications over the age of 40. In response, GMRI argued that the EEOC is looking at sanctions because it has failed to find any evidence of age discrimination.

In a different case that has been pending in Colorado since 2010, the EEOC secured sanctions against an employer for its failure to produce records it claimed had been destroyed. In Equal Employment Opportunity Commission v. JBS USA LLC, the EEOC claimed that a meat-processing company failed to reasonably accommodate Muslim workers’ requests for prayer breaks. JBS asserted an undue burden affirmative defense throughout the case, arguing production line slowdowns and downtime would have been caused by allowing prayer breaks to Muslim employees. The EEOC sought discovery from JBS about its undue burden affirmative defense, specifically, all reports or data showing all dates and times the fabrication lines on any and all shifts were stopped, as well as the speed of the lines.

After years of maintaining these records were destroyed, JBS produced a number of reports it found in a warehouse; however, more records presumably stored in boxes at the warehouse could not be located. The Court sanctioned JBS for the loss or destruction of documents directly relevant to JBS’s allegations of undue hardship. The critical problem for JBS, as the Court noted, was the fact that JBS management knew “within a year” after downtime records were created that they were relevant to the EEOC investigation, yet still failed to set them aside for use in the litigation.

What is the lesson to be learned? 

EEOC v. GMRI Inc., teaches that the EEOC may claim spoliation and pursue sanctions against a defendant, even (or perhaps particularly) where the evidence does not readily support the EEOC’s allegations of discrimination. EEOC v. JBS USA, LLC provides an important lesson for businesses regarding the preservation of documents in ongoing litigation. As noted above, the critical problem for JBS was that JBS management knew downtime records were relevant yet still failed to preserve them.

Both cases illustrate the importance of immediately implementing Litigation Holds. Employers must, as a matter of course, establish appropriate procedures and work with staff, IT professionals, and legal counsel to ensure all relevant evidence is preserved.  Failure to preserve evidence may deprive defendant of an otherwise viable defense.

U.S. District Court for the Eastern District of California Holds that Job Applicants May Bring Disparate Impact Claims under ADEA

Contributed by Allison Sues, February 23, 2017

On February 17, 2017, the United States District Court for the Eastern District of California held that job applicants could proceed with their disparate impact claim brought under the Age Discrimination in Employment Act (ADEA).

68565758 - book with chapter age discrimination and a gavel.In Rabin v. Pricewaterhouse Coopers LLP, plaintiffs filed a putative class action alleging that the global accounting and auditing firm used hiring practices and policies for entry-level positions that gave preference to younger applicants and resulted in the disproportionate employment of younger employees. The complaint alleged that these hiring practices include recruiting through universities and maintaining a mandatory retirement policy that requires partners of the firm to retire by age 60. The complaint also alleged that the firm’s hiring practices focused on attracting younger workers. The complaint provided examples such as the firm’s employment opportunity promotion materials, which featured only pictures of younger employees, stated that the majority of their workforce is made up of millennials, and described perks geared towards younger employees, such as student loan repayment assistance. The complaint alleges that the result of these hiring practices and policies is a disproportionately young workforce, with the average age of firm employees being 27 years old.

While it is established law that the ADEA allows employees to bring both disparate treatment and disparate impact claims, the firm argued in its motion for judgment on the pleadings that the ADEA does not allow job applicants – as opposed to employees – to bring such claims.  In its motion, the firm relied on the Eleventh Circuit’s 2016 decision in Villareal v. R.J. Reynolds Tabacco Co., which analyzed the language of section 4(a)(2) of the ADEA in determining that the statute does not authorize disparate impact claims by non-employees.

The Eastern District of California in Rabin declined to follow this eleventh circuit precedent and instead held that job applicants may bring disparate impact claims under the ADEA. In a thorough opinion, the court reasoned that the ADEA’s statutory language and legislative history, as well as the Supreme Court precedent, supported the holding that job applicants may bring disparate impact claims. The court also deferred to the Equal Employment Opportunity Commission (EEOC)’s current age discrimination regulation, which states that “[a]ny employment practice that adversely affects individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a reasonable factor other than age.”  29 C.F.R. § 1625.7(c) (emphasis added).

Employers should be careful that their hiring practices and policies do not tend to favor younger workers. The following is a non-exhaustive list of practices that should be re-evaluated to ensure that job postings and hiring practices do not run afoul of the ADEA:

  • Using such phrases as “Recent Graduates Wanted” or “Looking for High School Graduates” in job postings
  • Advertising a youthful workforce in recruiting materials
  • Exclusively recruiting through university programs
  • Making any reference to “millennials” in any recruiting or job posting documents
  • Promoting employee perks geared only to attract younger employees, such as student loan repayment assistance or daycare options for young children