Employee Files EEOC Charge, Then Copies Five Confidential Coworker Files

Q: Protected Title VII Activity?

A: Not When This Also Breaks State Law.

Employer Pop Quiz: If an employee has filed a charge with the EEOC alleging discriminatory discipline, then that same employee reviews, copies, and distributes confidential personnel files of coworkers, all without authorization, can you fire her for that? As usual, the answer is: It depends. If the employee also broke state law, yes. That is what the 4th Circuit decided last November in Netter v. Barnes.

Netter had worked for the Guilford County (NC) Sheriff’s Office for sixteen years before being disciplined and losing out on a possible promotion. She then filed charges with the County’s HR department and the EEOC. The County’s HR investigator asked for evidence of discrimination. In response, Netter found five employee files she thought would help her case, copied them, and gave them to the HR investigator. She also gave copies to the EEOC and her own lawyer. She should have told the two investigators where to look, then waited patiently. Instead, she broke a state law that protects County employee personnel files from unauthorized access and disclosure. For that reason, her termination was legitimate — even though she had been participating in the investigation and opposing alleged discrimination by what she had done, this was not protected activity.

The Sheriff asked the Court to rule that a violation of an employer’s confidentiality policy alone, without the state law violation, would have been enough. The Court refused. Oddly, protection for “opposition” to activity unlawful under Title VII is subject to a requirement of objectively reasonable conduct, but protection for “participation” in investigation of such conduct is not. With only a company policy violation, the same conduct — even if objectively unreasonable — could be protected participation in an investigation of alleged discrimination.



For assistance with handling employee complaints about possible unlawful discrimination, harassment, or retaliation, contact Nicole Gardner or Caleb Holloway.