Seyfarth Synopsis: Plaintiffs often have difficulty producing evidence of comparators when attempting to prove unlawful discrimination because records contained in personnel files are confidential, but any attempts to gather such evidence must be lawful. An employee’s unauthorized review and disclosure of confidential personnel files, in violation of state law, was recently ruled not to be protected activity under Title VII.

The Fourth Circuit recently held that Title VII does not protect an employee from being terminated for conduct that violates a state law, even when that action is taken in furtherance of a Title VII claim, so long as the state law does not pose a direct conflict with Title VII. Netter v Barnes, No. 18-1039 (4th Cir. 11-15-2018).

Catherine Netter, a Black and Muslim woman, worked as a detention services supervisor for the Guilford County Sheriff’s Office in North Carolina. After receiving a disciplinary sanction that barred her from testing for a promotion, she filed complaints with her human resources department and the EEOC, alleging that similarly situated officers of other races and religions were not disciplined. When asked if she had evidence to support her claims, Netter reviewed and copied five employees’ confidential personnel files, without the employees’ consent or her own supervisor’s permission. Netter provided copies of the files to the county human resources investigator, the EEOC, and her lawyer. Upon learning of these events, Sheriff BJ Barnes terminated Netter’s employment, a decision based in part on her violation of a state law prohibiting “knowingly and willfully examin[ing] . . . , remov[ing], or copy[ing] any portion of a confidential personnel file” without authorization.

Netter argued that her termination constituted illegal retaliation because her copying and distributing the files was a protected participation activity, or alternatively, protected opposition activity, under Title VII. Protected opposition activity requires an employee to show (1) that she reasonably believed that the action she opposed violated Title VII and (2) that her conduct was reasonable. As such, the court quickly disposed of Netter’s alternative argument, noting that “unauthorized disclosures of confidential information to third parties are generally unreasonable,” and that even if she reasonably believed the county investigator had a right to access the files, Netter’s own unauthorized review was unreasonable.

Protection for participation activities is much broader and includes activities that are unreasonable or irrelevant; however, the plaintiff still bears the burden of proving that the retaliation (here, Netter’s termination) would not have occurred but for the protected activity. The court held that Netter’s conduct was not a protected participation activity because her actions violated a valid, generally applicable state law. In so doing, the court rejected Netter’s argument that the state law was preempted by Title VII because the state law has a valid purpose of protecting county employees’ personal information, and it neither contradicts Title VII nor impedes the pursuit of a Title VII claim. Furthermore, Barnes clearly established that Netter would have been terminated based solely on her violation of state law, so even if the other grounds for her discharge were invalid, Netter failed to prove that she would not have been terminated but for her participation in a protected activity.

Takeaways for Employers

While many employee activities can qualify as protected activity under the various discrimination statutes, they are not blanket protection statutes. Should you be faced with conduct that might otherwise violate an employee conduct standard or some other established law or public policy, disciplinary action can be considered for the underlying, unprotected conduct. Consider those actions carefully, in consultation with your Human Resources professional and/or legal counsel.