- An employee's unauthorized review and disclosure of confidential personnel files to support her claims of race and religious discrimination was not protected activity under Title VII of the Civil Rights Act of 1964, the 4th U.S. Circuit Court of Appeals has ruled (Netter v. Sheriff BJ Barnes and Guilford County Sheriff's Office, No. 18-1039 (4th Cir., Nov. 15, 2018)).
- Catherine Netter, who is black and Muslim, received a disciplinary sanction that barred her from testing for a promotion. She later filed complaints alleging that other officers at her employer, the Guilford County's Sheriff's Office, had not been similarly disciplined. To back up her claims, Netter provided confidential personnel files to an investigator in the county's HR office, the U.S. Equal Employment Opportunity Commission (EEOC) and a lawyer. As a result, a professional standards officer in the sheriff's office recommended that Netter be fired for violating department policy and North Carolina law. Netter's employment was terminated. Netter then filed a new charge, contending that the sheriff had fired her for engaging in protected activity under Title VII. A federal trial court dismissed all of her claims. On appeal, Netter challenged only the dismissal of the retaliation claim.
- The appeals court upheld the trial court's decision. Netter argued that her conduct was protected under Title VII's participation and opposition clauses because she believed that the county investigator had a right to access employee personnel files and that, under the Constitution's Supremacy Clause, illegal activities can be protected if state law conflicts with Title VII. The court held that Netter's unauthorized review and duplication of confidential personnel files did not constitute protected activity under Title VII. "We are loath to provide employees an incentive to rifle through confidential files looking for evidence," the apepals court said. It added there was no conflict between the state and federal law as the North Carolina law is aimed at protecting the personal information of current and former county employees and does not contradict Title VII's provisions nor meaningfully impede a litigant's ability to pursue a Title VII claim.
Given the increased prevalence of discrimination claims brought to EEOC in the past year, the court may have handed down a key ruling for employers in the circuit.
The 4th Circuit's ruling in Netter is a reminder to employers that Title VII's participation clause has its limits, and that employers may have grounds to fire an employee who violates a "valid state law," attorney Melissa Legault of Squire Patton Boggs wrote in a blog post, even if the employee is doing so in order to bring a discrimination claim.
The court also left "some breadcrumbs" regarding the types of laws that could conflict with Title VII, Kelly J. Muensterman, an associate with Polsinelli PC., wrote in The National Law Review. Because the court discussed the importance of personnel files in showing evidence of disparate treatment, "[o]ne can imagine that courts might take a closer look at a state law that, for instance, placed limits on the ability of the EEOC (or a corresponding state agency) to seek the information contained in personnel files," Muensterman said.