In EEOC v. Jetstream Ground Services, No. 17-1003 (10th Cir. Dec. 28, 2017), the issue presented was whether the jury, which had ruled for the defendant, should have been instructed that records improperly destroyed by the defendant in violation of an EEOC recordkeeping regulation would have bolstered the EEOC's case. In rejecting the EEOC's appeal, the court concluded that, although circuit precedent strongly suggested that a violation of the EEOC regulation, even if not in bad faith, creates a presumption that the factfinder should be informed about, this case was distinguishable for two reasons. First, the EEOC's proposed instruction would have established an irrebuttable presumption. And second, the defendant had presented evidence rebutting the presumption. Relying on the Federal Rules of Evidence, the court reasoned that the burden of proof as to the presumption remains with the plaintiff, so the defendant can rebut the presumption by merely producing evidence contradicting the presumption and need not prove the opposite of the presumed fact. Since the defendant had produced such evidence, there was no longer any basis for the presumption, and it would have been improper for the jury instruction to have mentioned it.
I don't know enough about this area of the law to have an opinion as to whether the court's decision is correct. Still, I wouldn't expect the EEOC to be too happy. The court significantly diminishes the potential benefit that a plaintiff can get from any presumption created by an employer's recordkeeping violation, assuming it was not in bad faith. If the EEOC seeks rehearing, I would expect it to be on this issue.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.