Does Title VII protect an employee's self-help discovery?

Suppose one of your employees believes that she was discriminated against because of her protected class. She files a charge of discrimination with the EEOC, and, in support of the charge, provides the agency information from your confidential personnel files that she had copied. In response, you fire the employee for violating your confidentiality policy? She then files a new charge, alleging that her termination was in retaliation for her protected activity of gathering evidence in support of her discrimination claim.

Does her retaliation claim succeed?

Lawyer answer: it depends.

Most recent answer: The 4th Circuit Court of Appeals, in Netter v. Barnes.

Under the opposition clause, unauthorized disclosures of confidential information to third parties are generally unreasonable.…

However, the participation clause offers more capacious protection for conduct in connection with Title VII proceedings. Application of the participation clause must account for the evidentiary difficulties many plaintiffs face when pressing claims of workplace discrimination.…

That said, we cannot conclude that Netter's unauthorized inspection and copying of the personnel files constituted protected participation activity for a straightforward reason. She violated a valid, generally-applicable state law [against the] "knowingly and willfully examin[ing]…, remov[ing,] or copy[ing] any portion of a confidential personnel file" without authorized access. "[I]llegal actions" do not constitute "protected activity under Title VII."

We are loath "to provide employees an incentive to rifle through confidential files looking for evidence."

In other words, because Title VII's anti-retaliation provision do not permit an employee to engage in illegal activities, and because this employee's state law prohibits the copying of confidential personnel files, Title VII does not protect her copying in this case.

That said, your mileage on this issue will vary based on your jurisdiction and the nature of the how the employee gained the information.

Courts generally balance the following factors to determine whether the employee's gathering of the documents was reasonable, and therefore protected:

1. How the documents were obtained
2. To whom the documents were produced
3. The content of the documents, both in terms of the need to keep the information confidential and its relevance to the employee's claim of unlawful conduct
4. Why the documents were produced, including whether the production was in direct response to a discovery request
5. The scope of the employer's privacy policy
6. The ability of the employee to preserve the evidence in a manner that does not violate the employer's privacy policy.

For example, in Niswander v. Cincinnati Ins. Co., the 6th Circuit held that an employee who purposely rifles through confidential personnel records to locate evidence to support a discrimination claim cannot support a retaliation claim.

Yet, in Kempcke v. Monsanto Co., the 8th Circuit permitted the retaliation claim based on the fact that the employee had innocently stumbled across the evidence of potential discrimination in a computer that his employer had issued to him.

What does all of this mean for you?

First, review your company privacy policy to ensure that it sufficiently covers employee personnel files, so that you can rely upon it if you have to terminate an employee for engaging in some self-help to support a discrimination claim.

Secondly, before you take any action, check in with your employment counsel to discuss the circumstances, and the potential risks of stepping into a retaliation claim.

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