Is the EEOC Setting up Employers for Spoliation Claims?


An office of the U.S. Equal Employment Opportunity Commission has issued a “Document Retention Notice” that appears to be designed to turn meritless cases into spoliation claims. This is another example of how the EEOC has turned itself into a prosecutorial agency with no real pretense of impartiality. Employers need to respond accordingly.

The Document Retention notice, isued by the EEOC’s St. Louis office, goes far beyond the legal duty to preserve relevant evidence described in judicial opinions, has no basis in statutory or regulatory authority, and disregards the well-established legal rules concerning balancing burdens and benefits. Although the St. Louis office probably will claim the notice does nothing more than reflect existing law, this is simply not correct. The notice appears designed to make it possible for the EEOC to try to claim employers have failed to identify and preserve relevant evidence even where charges are frivolous.

All persons, natural and corporate, have a duty to preserve relevant evidence when claims are made. Importantly, this includes the person making the charge, a fact most employment lawyers don’t pay attention to. Traditionally, the employer had most, if not all, of the relevant records. Today, however, with the explosive growth of social media, email, texting and tweeting, the employee or former employee making the allegations almost certainly has lots of relevant documentation.

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