Copying And Disclosing Confidential Personnel Files In Violation Of State Law Is Not Protected Under Title VII
Published by Eric A. Welter and Kimberly Kauffman on February 22, 2019
The Fourth Circuit’s ruling highlights an important limitation to what may be considered protected activities under Title VII.
The plaintiff in Netter v. Barnes and Guilford County Sheriff’s Office worked as a detention services supervisor. She filed complaints with the Guilford County Human Resources office and Equal Employment Opportunity Commission (EEOC) after receiving a disciplinary sanction that barred her from testing for a promotion. Plaintiff alleged in her complaints that similarly situated, non-Black, non-Muslim individuals, had not been similarly disciplined. When Plaintiff was asked if she had evidence to support her claims by the Human Resources office, Plaintiff reviewed, copied and provided to the office confidential personnel files of two subordinate employee whom she supervised. Plaintiff also disclosed the personnel files of three other employees, which she had received through a personal request to a co-worker. Plaintiff later disclosed these files to the EEOC and her lawyer, but at no point did she ask for permission from the five employees or her supervisors to copy and provide these files.
When the documents were produced during discovery, the Sheriff’s office questioned how she came across these documents and Plaintiff admitted she had copied them without authorization. It was then recommended that Plaintiff be terminated on the grounds that: (1) she had violated department policy prohibiting the unauthorized review, copying, and disclosure of personnel records; (2) she had failed to perform to her position’s work standards; and (3) she had violated state law, which imposes criminal penalties for reviewing or disseminating information in county personnel files without authorization. The Sheriff agreed with the recommendation and Plaintiff was terminated. Plaintiff filed a new charge, and subsequently, supplemented her lawsuit to allege that she had been retaliated against in violation of Title VII for engaging in protected activity. The district court granted summary judgment in favor of the Sheriff’s office.
The Fourth Circuit on appeal analyzed Plaintiff’s claim that her actions were protected activity under both the participation clause and the opposition clause. Because the opposition clause requires the activity to be reasonable, unauthorized disclosures of confidential information are generally considered unreasonable and therefore, Plaintiff’s actions were not protected under the opposition clause. In analyzing Plaintiff’s claim under the participation clause (which contained no reasonableness requirement), the Court acknowledged the need for employee to be able to obtain evidence for a Title VII claim, as records needed to support a claim—like personnel files—are usually in the control of the employer. Indeed, the Court explicitly refused to broadly hold that any disclosure of information in violation of an employer’s confidentiality policy is never protected activity.
Yet, in this specific instance, the Court concluded that Plaintiff’s activity was not protected activity since it violated a valid state law. Illegal actions, thus, do not constitute protected activity under Title VII.
This case is a helpful example to employers of when an employee’s actions may not be considered a protected activity under Title VII and that disclosing confidential information, even in pursuit of an EEOC charge, may have its limits.
Employers should also take note of how the Court refused to broadly hold that disclosing information considered confidential under an employer’s policy would never be protected under Title VII. The Court’s recognized the need for employees to have some avenue to gather evidence for a discrimination claim—an often-difficult task when most of this evidence is controlled by the employer. Employers should therefore carefully think through any disciplinary decisions relating to violations of a confidentiality policy when the employee has disclosed such information in pursuit of discrimination allegations.Topics: EEOC, Employment Discrimination and Harassment, Employment Litigation, Equal Employment Opportunity Commission, Hiring Performance Management and Termination, Independent Contractor and Joint Employment Issues