Employees who face discriminatory treatment at work are often faced with the dilemma of how to substantiate their claims, and how to guard against the risk that their employer will hide or destroy evidence. Frequently, employees choose to take possession of substantiating evidence by forwarding emails to their personal address, or by making copies of documents which would otherwise remain internal. In doing so, employees sometimes violate employer policies governing confidential and proprietary information. On other occasions, these actions violate the law. The Fourth Circuit’s recent opinion in Netter v. Barnes, No. 18-1039, 2018 U.S. App. LEXIS 32358, (4th Cir. Nov. 15, 2018), establishes that employees who violate internal confidentiality policies in the furtherance of a Title VII investigation are protected by the “participation clause” of the statute’s retaliation provision, while those who break the law while doing the same are not.
Netter, a 19-year employee of the Guilford County Sheriff’s Office who is a Black Muslim woman, complained after receiving disciplinary action in April 2014 which prevented her from applying for a promotion. Netter eventually complained to the Guilford County Human Resources Department and to the EEOC that similarly situated officers who did not share Netter’s status as Black or Muslim were not subjected to the same disciplinary action for engaging in conduct identical to that which caused Netter to be barred from applying for a promotion.
When Guilford County Human Resources asked Netter if she had any evidentiary support for her allegations, she copied comparator personnel files and provided these documents to the county investigator, the EEOC, and to her attorney. Netter was subsequently terminated for violating department policy regarding access to personnel records, because she “failed to conform to the work standards established for her position,” and because her dissemination of the records violated N.C. Gen. Stat. § 153A-98, which imputes criminal liability to individuals who access personnel files of state employees without authorization. Following her termination, Netter filed a charge of discrimination with the EEOC contending that she was terminated in retaliation for participating in activity protected under Title VII’s participation clause. After the district court granted summary judgment to defendant, Netter appealed.
Title VII bars retaliation against any employee “because he has opposed any practice made an unlawful employment practice [under Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3. This provision of the statute can be divided into two discrete portions: the opposition clause—which punishes employers for discriminating against employees because the employee has opposed a practice made unlawful by Title VII, and the participation clause, which protects employees who have “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. An employee bringing a retaliation claim under the opposition clause typically must make a showing that such opposition was reasonable, effectively limiting what type of conduct is covered under this portion of the statute. See Laughlin v. Metropolitan Wash. Airports Auth., 149 F.3d 253, 257 (4th Cir. 1998).
In Glover v. S.C. Law Enforcement Div., the Fourth Circuit declined to similarly limit the scope of the participation clause by reading a “reasonableness” requirement the language of the statute, stating that doing so “would do violence to the text of that provision and would undermine the objectives of Title VII.” 170 F.3d 411, 414 (4th Cir. 1997). At the same time, Glover observes that “[e]mployers retain, as they always have, the right to discipline or terminate employees for any legitimate, nondiscriminatory reason.” Id. Glover therefore left open the question: if an employee discloses information in violation of an employer confidentiality policy, does this provide a sufficient legitimate, nondiscriminatory reason for terminating that employee?
Addressing this gap in the analysis provided by Glover, the court in Netter reiterated that a plain reading of the text of the participation clause—specifically its use of the phrase “participated in any manner”—does not provide for a reasonableness inquiry. Further, the court explicitly rejected the Defendant-Employer’s contention that “any disclosure of information in violation of an employer’s confidentiality policy falls beyond the scope of the participation clause.” Were the court to have adopted such a rule, it would likely have enabled employers to swallow the participation clause with broadly drafted workplace policy, and chilled employee participation in Title VII investigations.
Unfortunately for Netter, this aspect of the court’s opinion proved a small consolation, as her termination was ultimately upheld—the Fourth Circuit also reiterated that “illegal actions” are not protected under the participation clause. Therefore, because Netter’s access and copying of the personnel files of the comparator employees violated a “valid, generally-applicable state law,” her termination was held to be proper.
Ultimately, Netter provides valuable clarity: counsel for employees should encourage their clients to preserve evidence—provided that doing so could be classified as “participation”—without concern for internal policy, but with a wary eye on applicable law governing confidential and proprietary information.