Category Archives: evidence of 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.

McDonnell Douglas Analysis Takes Another Blow: Employment Discrimination Cases Should Be Assessed from a Straightforward, Non-Shifting Perspective, Seventh Circuit Says

Contributed by Jamie Kauther

The Seventh Circuit recently took another shot at the increasingly rebuked McDonnell Douglas framework for determining employment discrimination claims. Seasoned employment attorneys can recite the McDonnell Douglas burden-shifting analysis in their sleep; in fact, it’s likely been the topic of some sleep-talking rants for some. Under the analysis, established by the U.S. Supreme Court in 1973, if a plaintiff lacks “direct” or “smoking gun” evidence of discrimination, which they usually do, their claim may still survive if they show that (1) they are a member of a protected class; (2) they were meeting 8519134_sthe employer’s legitimate expectations; (3) they suffered an adverse employment action; and (4) other similarly situated individuals not in their protected class were treated better. Then the burden shifts to the employer to demonstrate a legitimate reason for the alleged discriminatory action. Once the employer meets that burden of production, it reverts back to the employee to show the employer’s reason is really a pretext for discrimination. Head spinning yet? The Seventh Circuit, since 2012, has criticized the analysis as burdensome and unjustified.

The first criticism came in 2012 in the 7th Circuit’s Coleman v. Donahoe, 667 F. Supp.2d 835 (7th Cir. 2012) decision. The court held that the district court too rigidly applied McDonnell Douglas’s “similarly situated” requirement and should have used a more flexible standard instead, reversing the lower court’s decision for the employer. Specifically, Judge Wood in her concurrence wrote, “Perhaps McDonnell Douglas was necessary nearly 40 years ago….this case well illustrates, the various tests that we insist lawyers use have lost their utility.” She suggested that employment litigation be dealt with like tort litigation, through a straightforward approach. This straightforward approach again was championed on October 26, 2015 in the Hooper v. Proctor Health Care Inc., No. 14-2344 (7th Cir. 2015) decision. In Hooper, the court recognized its recent questioning of the “continued utility of the direct and indirect methods of proof in analyzing discrimination claims” but still utilized it. However, the court reiterated what it stated in Coleman, that  a court’s main inquiry should be “whether a reasonable jury could find prohibited discrimination.”

The clear take away is that the federal judiciary is looking beyond the framework of McDonnell Douglas and defense attorneys and employers should too. Since the analysis is still utilized, its requirements should not be neglected, but a defense to an employment discrimination claim also should not  solely rest upon the McDonnell Douglas framework.  Employers also should prepare a defense that takes into consideration the issues of the case and answers the question: “Could a reasonable person find discrimination here?” in the negative.