Suppose your company has been sued based on allegations of religious discrimination. You feel pretty confidentthat you did not engage in any such discrimination in any way. Maybe you and your managers even bent over backwards to provide the requested accommodations or a reasonable alternative. You believe you have air-tight explanations for and defenses to allegations of retaliation and harassment. You have now found out that your none of your explanations, defenses or evidence will help. You cannot present any of it in your company’s defense. Without your evidence and defenses you are a sitting duck. Your company will lose its case if it goes to trial and face a likely multi-million dollar verdict or pay a significantly large settlement.
How can that possibly be? Can that really happen? The answer is yes, if you’re careless. It just did. Read on to find out more and learn how you can make sure your company is never in that position…
(image from gograph.com)
The case is EEOC v v. JBS USA, LLC, Case No. 10-CV-02103, 2017 U.S. Dist. LEXIS 122908 (D. Colo. Aug. 4, 2017). According to the EEOC, the employer, a meat-packing company, discriminated against its Muslim employees, by engaging in a pattern and practice of harassment, retaliation, wrongful termination, and denying reasonable religious accommodations. Employees during Ramadan 2008 (September-ish?) sought opportunities to pray. During a dispute between them and JBS, hundreds of employees walked off the job. JBS then fired 96 employees who refused to return to work, and the employees then filed discrimination charges with the EEOC. From the beginning, JBS argued that granting prayer breaks was an undue burden, because it would cause too many slowdowns and too much downtime. Had JBS produced records to substantiate those assertions it might have been able to get the claim dismissed.
For those of you not familiar with litigation (lucky you!) there is a period of time between the filing of the lawsuit and the trial (or settlement) known as discovery. During this time, each party obtains evidence from the other by means of certain discovery tools. Among those options is the request to produce documents. A party that fails to comply with a document production request in discovery may be subject to sanctions, unless it asks the court (by way of motion) relieves that party of the obligation. In this case, the EEOC requested that JBS produce all data regarding all dates and times that fabrication lines were stopped and the speed of all fabrication lines. This information related to JBS’s undue burden defense. While JBS did produce some records, specifically those related to scheduled breaks, initially it did not produce any records in connection with unscheduled breaks or downtime. Later on JBS did manage to produce some of the relevant records, but only from 2012-2016 (presumably after the time that these former employees were terminated). What about earlier records? JBS admitted to having destroyed those.
The court sanctioned JBS (more on the specific sanctions in a minute) on two bases: a) failure to produce or supplement production of responsive records in a timely manner as well as failure to show that such failure was either justifiable or harmless and b) spoliation of evidence.
Now, you may be asking, “What in the world is spoliation of evidence”? That’s a great question! Let me see if I can answer that. When parties are either in litigation or know or have reason to anticipate litigation, they have an obligation to preserve evidence that could be relevant at a trial. Loss of destruction of such evidence by a party is known as spoliation. JBS argued that no spoliation happened because it had no duty to preserve evidence at the time of its destruction. It reasoned that it did not and could not know that the EEOC would have wanted specific evidence of each instance in which the production line experienced an unforeseen stoppage or slowdown. There is only one problem with that argument: JBS asserted an undue burden defense, citing slowdowns and stoppages as the reason why they could not allow prayer breaks. In other words, JBS asserted a defense and then proceeded to destroy evidence related to that defense and then argued that it could not have foreseen that the EEOC would be interested in that evidence. You can probably see why the court would be less than impressed with that argument.
JBS also argued that its failure to produce those records did not prejudice the EEOC, because the information could not have shown whether the slowdown or stoppage was actually related to prayer breaks. It further argued that the information was “only as specific as the information known to the person filling the Downtime Report”. Wait. So the person filling the report would not know whether there was a prayer break or the reason for the slowdown or stoppage? Even if that were so, which seems unlikely, the court was similarly unimpressed by this argument, ruling that “[r]ecords such as those sought, which potentially show the actual impact of unscheduled employee prayer breaks, are particularly important to understanding the impact such breaks would have on production line slowdowns or stoppages because they would provide contemporaneous records of whether unscheduled breaks led to production downtime.”
OK, so JBS is in trouble, because it has been subject to sanctions. But what are the sanctions? Often the sanctions are hefty monetary fees. In this case they are not, but they are no less costly and damaging to JBS. In this case, the court barred JBS from presenting any evidence at trial or motions or hearings, including testimony, documents, arguments, that unscheduled prayer breaks led to production line slowdowns or stoppages. Does that sound harsh? Well, it is, but the court felt such sanctions were very appropriate and “tailored to the evidence lost, destroyed, or withheld by JBS because it alleviates the prejudice which the EEOC would otherwise suffer, namely, that JBS may present evidence of stoppages through witnesses, but the EEOC would not be able to rebut such testimony with records that would likely prove whether stoppages actually occurred and, perhaps, for what reason.”
What do those sanctions mean for JBS? In the absence of other strong defenses, JBS is now without any defense and is probably looking at a hefty payout, by way of either jury verdict or settlement.
What can and should we learn from this case? Your claims and defenses are quite often only as good as your records. If you do not create them in the first place then of course you have no proof. In a discrimination case, you may know you didn’t discriminate, but you may lose because you do not have proof. If you had the records and you either refuse to produce them or you lose or destroy them you have the same issue, but you could be facing sanctions that include paying hefty fees if it is found that you had an obligation to preserve those records. How do you know if or when you have a duty to preserve records? If you are in this type of dispute with an employee (or former employee) you have reason to anticipate litigation. If an employee files and EEOC charge you have reason to anticipate litigation. As soon as you have reason to anticipate litigation you must preserve any evidence related to the allegations and any defense you might assert. Failure to do so can subject to a similar fate to JBS. I don’t want to see that happen to any of you, so: a) document as much as you can; b) retain those documents; c) have a record retention and destruction policy and follow it as consistently as possible; d) before you purge or destroy documents check in with your friendly legal counsel.
OK, this is sounding a bit too school-like so let’s stop for now — or class dismissed…
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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