Employees who are having harassment, discrimination or retaliation issues at work often consider making copies of documents that they believe will support or prove their claims. This could include personnel records, internal memos, and various other documents. However, in many cases, the employer will terminate the employee once it is discovered that the documents were copied or removed from the workplace without permission. A question that clients ask, is whether they should copy records when they are involved in litigation against their employers. This is a very tricky subject, so here are some things to consider.
Protections for employees from discrimination or retaliation
There are federal laws that protect employees when they engage in protected conduct, such as opposing unlawful discrimination or retaliation. Specifically, Title VII prohibits employers from discriminating against their employees because of their race, gender, or sex. Discrimination can come in the form of hiring, firing, pay raises, job assignments, promotions, layoffs or reductions in force, training, fringe benefits, and any other term or condition of employment, because of someone’s race or gender.
Title VII also makes it unlawful to harass someone because of their race, gender or sex. The harassment cannot be merely a few isolated comments. But if the harassment leads to an adverse employment action, such as termination or discipline, then it may be actionable. However, those protections do not always protect against every type of conduct. While preserving relevant documentation as evidence to support your employment claims is important, you must be careful which records you preserve and how you preserve them.
Quinlan v. Curtiss Wright Corporation
Joyce Quinlan believed her employer discriminated against her by denying her a promotion because of her gender. Consequently, she copied confidential human resources documents that she believed would support her discrimination claim. She then produced those documents during the litigation of her claims. Her employer terminated her for taking the confidential documents during the course of litigation.
At that point, Quinlan added a retaliation claim to her lawsuit, alleging that she was terminated in retaliation for participating in the litigation of a discrimination claim. The court, in that case, was then called upon to decide whether she was protected from termination for copying the confidential employment records and using them as part of her lawsuit. The court determined that she was protected and here is why.
Balancing of interests
In ruling on Quinlan, the court decided that it was proper to balance the interests of the employee and the employer, which has an interest in maintaining certain confidential records while operating its business. On the other hand, employees have an interest in protecting themselves from discrimination and in opposing illegal discriminatory conduct. Specifically, in a situation involving the taking of documents belonging to the employer, the court delineated several factors to be considered.
How were the employer records obtained and how were they used?
The court, in this case, stated that it should consider how the employee gained possession of the documents. If it was during the regular course of his duties that would weigh in favor of the employee. However, if subterfuge was used to gain access to the documents that will likely be a problem. Another consideration is whether the employee simply copied the document and provided it to his attorney for purpose of the lawsuit or whether he shared it with other coworkers, for example.
Were the documents confidential and was a policy violated?
Another factor to consider is the extent to which the documents were confidential or privileged. Depending on the confidential nature of the documents at issue, especially if they contain trade secrets or proprietary information, taking those documents will be a problem. Another issue arises when the documents contain medical information or other personal information protected by HIPAA.
Also, when there is a clear, specific company policy involving confidentiality, and that policy was violated by accessing and/or copying the documents, that would weigh in favor of the employer. However, if it is determined by the court that the company does not routinely enforce the policy, the court will consider that fact as well.
Other factors to consider
If the document was particularly relevant to establishing discrimination or retaliation, that fact would be balanced against the disruption to the employer. It is important that the employee has a reasonable belief that the document would have been destroyed or not maintained by the employer, which supports the employee’s need to copy them. Ultimately, the court will determine whether the remedial purpose of employment laws would protect the employee against adverse employment actions. The determination requires a “totality of the circumstances” approach.
If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Wrady & Michel, LLC. You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!