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Employer’s Failure to Keep Records May Result in Liability or Discrimination
The failure to keep accurate employment related records in accordance with applicable law may have broader implications than many employers suppose. Indeed, in a recent Second Circuit case, Byrnie v. Town of Cromwell, the Court of Appeals held that an employer’s destruction of records which it is obligated to maintain under federal law may not only hamper the employer’s ability to defend an employment discrimination claim, but also favor a plaintiff employee by providing an inference that the documents contained information that would help the employee to prove unlawful discrimination.
The Case
The Town of Cromwell School District advertised for an art teacher and composed a hiring committee to screen the applicants. Byrnie, a 64 year old male, had extensive experience teaching art in the school district and applied for the position, along with 40 other candidates. After a lengthy recruitment process the field was narrowed to four, including Byrnie. The school district ultimately hired a 42 year old woman. Byrnie subsequently filed suit, claiming both age and sex discrimination. After dismissal at the Commission on Human Rights and Opportunities (“CCHRO”) and the district court’s subsequent granting of summary judgment for the school district, Byrnie appealed to the Second Circuit. On appeal, Byrnie claimed that because the school district destroyed documents relevant to the hiring process, he was entitled to an “adverse inference” that the destroyed records would have enabled him to prove discrimination. The destroyed records included: the applications of the other candidates, the ballots used by the hiring committee, and the talley sheet of committee members’ votes. Also missing were the notes taken by hiring committee members during the interviews and the memorandum prepared by the principal upon which the school district’s lawyers relied to craft the Answer to the CCHRO complaint.
The Court Decision
The Appeals Court agreed that Byrnie was entitled to an “adverse inference” due to the school district’s destruction of the documents. First, the Court held that the school district had a legal duty to retain the documents because Byrnie had filed a charge with the CCHRO thereby putting the school district on notice of potential litigation and the relevancy of the documents. Moreover, the Court found, the school district was required by federal regulations implementing Title VII and the Americans with Disabilities Act to retain all records pertaining to employment decisions for a period of two years. In determining what effect, if any, the destruction of the documents ought to have on the litigation, the Court announced a rule of which employers should be aware. If an employer destroys documents that it is obligated to retain under federal law, then an employee may be entitled to an inference at trial that the records would have helped him establish his claims. In order to be entitled to this inference, the employee must first prove that he is a member of the general class of people that the regulatory agency that issued the record-keeping requirement intended to protect. The employee must also show that the records were destroyed with a culpable state of mind (e.g., knowingly) and that they were relevant to a party’s claim or defense.
Practical Implications
The rule announced in this case is relevant not only to discrimination claims, but also, for example, wage and hour claims where payroll documents may have been destroyed, and requests for reasonable accommodation under the Americans With Disabilities Act where documents relating to the interactive process are at issue. In light of this case, employers should ensure that they are maintaining employment records for the required time periods as mandated by state and federal law. For more information about record-keeping requirements under federal law, please see our In Focus section of this Employment Advisory.