When sued, employers must preserve all evidence in their possession that may concern the lawsuit and its underlying claims. That means that as soon as you receive an EEOC complaint, you should issue a litigation hold directing the retention of all electronic communications, such as e-mails.
Don’t let employees make their own decisions about which e-mails they should keep.
Recent case: Victoria Jones, who is black, had worked for years as a secretary at a school district. She began complaining that black administrative employees got more work and less respect than their white counterparts. She was constantly called into meetings to discuss her performance and received numerous e-mails from supervisors and managers.
She filed an EEOC complaint—and was terminated shortly after. When the district received the complaint, three managers who had been involved with Jones’ discipline were told to review their e-mails and preserve those they believed might be relevant to the case.
However, they were free to delete other e-mails, too—and once they did, those e-mails weren’t backed up. It was only later in the litigation that the district came up with a way to preserve all e-mails and blocked employees from permanently deleting messages.
Jones asked a court to sanction the district because there was a large gap in the e-mails, many which might have involved her disciplinary meetings.
The court agreed that the district was in the wrong—especially when it let the managers decide which e-mails were relevant. It pointed out that the managers were hardly disinterested parties and could possibly scrub the electronic record of anything that reflected poorly on their decisions. The court then said the jury should be told about the missing e-mails. (Jones v. Bremen High School, No. 08-C-3548, ND IL, 2010)