The Rocky Mountain Employer


Labor and Employment Law Updates

Unauthorized Copying of Co-Worker Personnel Files to Support Discrimination Claim Is Not Protected Conduct

An employer did not violate federal law by firing an employee for copying confidential coworker personnel files in an effort to support her discrimination claim, the Fourth Circuit Court of Appeals ruled.FN1 The court in Netter v. Barnes rejected the plaintiff’s argument that stealing confidential personnel files for the purpose of proving a discrimination claim is protected conduct under Title VII of the Civil Rights Act of 1964 (“Title VII”).

Title VII’s anti-retaliation provisions prohibit employers from, among other things, opposing conduct prohibited by Title VII, including discrimination based on race, color, religion, sex, or national origin.FN2 For activity to be protected opposition to discrimination, an employee must show she (1) reasonably believed the action she opposed violated Title VII; and (2) that her conduct opposing the act was reasonable. A plaintiff claiming retaliation also must establish the alleged retaliation “would not have occurred in the absence of the alleged wrongful action or actions of the employer.”FN3

In affirming summary judgment dismissal of the plaintiff’s retaliation claim in Netter, the appeals court reasoned that “unauthorized disclosures of confidential information to third parties are generally unreasonable,” and thus not protected under Title VII. The court further explained that although employees do not have license to “rifle through confidential files looking for evidence,” the Equal Employment Opportunity Commission (“EEOC”) can subpoena such documents, and documents are discoverable in a litigation.

Practical Takeaway

The Netter case highlights two key aspects of Title VII: (1) the law generally does not prohibit a company from disciplining or discharging an employee for violating company policies, assuming the policies are non-discriminatory and consistently enforced; and (2) although courts tend to view a wide range of conduct as protected, Title VII has its limits and does not protect plainly unreasonable acts.


FN1:   Netter v. Barnes, No. 18-1039, 908 F.3d 932 (4th Cir. 2018). The Fourth Circuit Court of Appeals hears federal court appeals from Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

FN2:   42 U.S.C. § 2000e-3(a).

FN3:   Netter, 908 F.3d at 938 (quoting Univ. of Texas Sw. Med. Ctr. V. Nassar, 570 U.S. 338, 360 (2013).