When a current employee files an EEOC charge or other legal claim against his or her employer, the company sometimes learns that the employee has been taking company documents and providing them to persons outside the organization to support their claims. Can the employer fire the employee for misappropriating confidential business information, or is this behavior protected activity under labor laws? Last month, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) concluded that Title VII’s anti-retaliation provisions did not protect an employee who accessed personnel records to support her claim of discrimination.

In Netter v. Barnes, the plaintiff was a sheriff’s department employee who claimed that she was discriminated against on the basis of race and religion when a disciplinary warning prevented her from receiving a promotion. She filed an EEOC charge and then accessed and copied personnel records of co-workers to demonstrate that other employees had not been disciplined for the same actions. Once it discovered these actions, the department fired the plaintiff on the basis of employment policies protecting confidential information, as well as a North Carolina statute that prohibits review and disclosure of public employee personnel records.

The plaintiff then filed a second EEOC charge, alleging retaliation based on the termination. The district court dismissed the retaliation claim on summary judgment, and the plaintiff appealed this decision to the Fourth Circuit. In its decision, the court upheld the dismissal, finding no violation of Title VII’s anti-retaliation provisions. The Fourth Circuit noted that employees had clearly been advised about the confidential nature of the personnel records. Because state law prohibits disclosure of such materials, the plaintiff’s actions were deemed unreasonable, and therefore not protected under Title VII.

Employers should exercise caution when implementing the lessons of this decision. Both the EEOC and federal courts give charging parties substantial leeway to collect and use evidence for their claims, including use of materials deemed confidential by the employer. The North Carolina law cited in this case does not apply to personnel records maintained by private sector employers. In order to take disciplinary action against employees who use company information to support their claims, the employer needs to demonstrate that the employee accessed truly proprietary information after having been advised not to, in a manner that unreasonably causes harm to the company.