EEOC Finalizes Its Anti-Retaliation Enforcement Guidelines

At the end of August, the EEOC issued its final enforcement guidelines on retaliation claims just a few months after publishing its draft guidelines previously discussed here in February.  The final guidelines contain some additional discussion not previously included, including on the burdens of proof and causal connections required to show retaliation.  As most people know by now, the anti-retaliation provisions of the federal employment discrimination statutes encompass a broader range of employment actions than arise under regular discrimination statutes.   The final guidelines also contain a new section about claims alleging interference with ADA rights, which the EEOC interprets to provide broader protection than even the anti-retaliation clauses.

Protected Activities.  As previously mentioned, the EEOC contends that the “participation” clause in the anti-retaliation provision of Title VII (and other employment discrimination statutes) protects employees from any form of disciplinary action or adverse employment action regardless of the honesty or reasonable belief of the employee during the process.  Further, the EEOC contends that protected “participation” includes not only participation in agency or government proceedings, investigations and lawsuits, but also to internal employer complaint policies and investigations.  The EEOC defends its position because the Supreme Court left the issue open in Crawford v. Metropolitan Government of Nashville whether an employee’s participation as a witness in an internal workplace investigation was “participation” or merely “opposition.”  In contrast to “participation,” an employee’s “opposition” to potentially unlawful conduct must both reasonable and be based on a reasonable belief in order to be protected.   

Opposition can include the following:

·        participating in an internal workplace investigation,

·        refusing to obey an illegal order to discriminate against a subordinate or co-worker,

·        complaining to a union, lawyer, or customer,

·        picketing,

·        stating an intention to file a charge of discrimination

·        complaining after one incident of harassing conduct even though the conduct has not yet risen (i.e., become severe or pervasive enough) to the level of illegal (or actionable) workplace harassment,

·        requesting a reasonable accommodation for a religious belief or disability, and

·        discussing information about co-workers’ compensation to support or determine whether the rates are discriminatory,

The opposition clause applies if an individual explicitly or implicitly communicates his or her belief that the matter complained of is, or could become, harassment or other discrimination. The communication itself may be informal and need not include the words "harassment," "discrimination," or any other legal terminology, as long as circumstances show that the individual is conveying opposition or resistance to a perceived potential EEO violation. Individuals may make broad or ambiguous complaints of unfair treatment, in some instances because they may not know the specific requirements of the anti-discrimination laws. Such communication is protected opposition if the complaint would reasonably have been interpreted as opposition to employment discrimination.

The opposition clause also protects all employees, regardless of their position or responsibility for enforcing EEO laws, so that HR managers are protected to the same extent as any other employee for opposing unlawful conduct. 

The opposition clause does not permit an employee to neglect job duties, make numerous specious complaints, badger co-workers to become witnesses, or coerce a co-worker to change his or her story, etc.

Retaliatory Actions.  While the retaliatory act must constitute a materially adverse job action, this encompasses any action that might deter a reasonable person from engaging in protected activity.   This is also a broader range of activities than can constitute actionable discrimination and can include actions that did not, in fact, deter the victim.  It can, for instance, include warnings, transfers, performance evaluations, reprimands, activities outside of work, disparaging the person to the media, more closely scrutinizing work, and retaliating against a family member, etc.  Trivial actions that would not deter a reasonable person from engaging in protected activity will not be considered as materially adverse.  Harassing acts that might not be severe or pervasive enough to constitute actionable harassment could constitute actionable retaliation.

Causal Connection.  Evidence must show that the employee would not have suffered the retaliatory action but for his or her protected conduct.   This is not a “sole cause” standard because there can be multiple “but for” causes.   Sometimes, an employer denies knowledge of the protected conduct and other times offers a legitimate and non-retaliatory reason for its actions.    A causal connection can be established, for instance, by suspicious timing, comments, comparative treatment, selective enforcement, and inconsistent or shifting explanations for the employer’s action, etc.

ADA Interference.  The ADA’s prohibition against interfering with ADA rights is interpreted by the EEOC as being broader than the anti-retaliation provisions.

Because the "interference" provision is broader, however, it will reach even those instances when conduct does not meet the "materially adverse" standard required for retaliation. Examples of conduct by an employer prohibited under the ADA as interference would include:

·        coercing an individual to relinquish or forgo an accommodation to which he or she is otherwise entitled;

·        intimidating an applicant from requesting accommodation for the application process by indicating that such a request will result in the applicant not being hired;

·        threatening an employee with loss of employment or other adverse treatment if he does not "voluntarily" submit to a medical examination or inquiry that is otherwise prohibited under the statute;

·        issuing a policy or requirement that purports to limit an employee's rights to invoke ADA protections (e.g., a fixed leave policy that states "no exceptions will be made for any reason");

·        interfering with a former employee's right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers if the suit is filed; and

·        subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a coworker in requesting reasonable accommodation.

The interference provision does not apply to any and all conduct or statements that an individual finds intimidating. In the Commission's view, it only prohibits conduct that is reasonably likely to interfere with the exercise or enjoyment of ADA rights. . . .

 . . .A threat does not have to be carried out in order to violate the interference provision, and an individual does not actually have to be deterred from exercising or enjoying ADA rights in order for the interference to be actionable.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Releases Updated Employment Retaliation Enforcement Guidance

Last month, the EEOC issued a draft of updated enforcement guidelines covering its investigations of retaliation allegations.   These were last updated in 1998.   As discussed below, the Guidelines take a few positions worth noting by employers. For instance, the EEOC explains that employees who make false allegations during an internal EEO investigation are protected from disciplinary actions.  Similarly, internal or formal complaints about incidents which are not yet severe or pervasive enough to constitute actionable harassment are also protected. However, there is no protection under the opposition clause for “complaints about trivial matters that no reasonable person could believe could become harassment or other discrimination.”  The EEOC also specifically finds that HR employees and managers are protected from retaliation and notes that disciplinary action against employees for violating pay confidentiality policies may be unlawfully retaliatory if the employee was also complaining about pay discrimination.

The first section discusses the types of “participation” and “opposition” that could constitute protected activity.  The obvious areas including filing a Charge, threatening to file a Charge, pursuing an internal EEO complaint, participating in an internal or EEOC investigation, rejecting sexual advances, refusing to discriminate against subordinates, and requesting a reasonable accommodation for a disability or religious practice.   However, the EEOC also included in this reporting a sexual assault to the police, reporting alleged discrimination to the news media or the employer’s customers, picketing, and passively refusing to comply with an unlawful direction to discriminate.  Even though an employee engages in protected activity, however, does not mean that he or she is immune from disciplinary action for also engaging in improper conduct or poor job performance.   Accordingly, employees cannot attempt to prevent disciplinary action simply by engaging in protected activity.

Even if the employee is incorrect about whether discrimination or harassment occurred, the employee need only have a reasonable good faith belief that the underlying employment action is illegal to be covered by the opposition clause.   For instance, an employee may protest workplace conduct before it becomes serious and pervasive enough to constitute harassment. (However, there is no protection under the opposition clause for “complaints about trivial matters that no reasonable person could believe could become harassment or other discrimination.”).  The EEOC will consider the employee’s opposition conduct to be protected unless his or her complaint is patently specious.  As an example, the EEOC described an employee who complained about an unfair pay raise, but did not make any comparison to anyone outside his protected class.   Similarly, an employee who complains about not receiving a promotion even though she admittedly did not possess the required degree or license would not have a reasonable belief about possible discrimination. 

That being said, the EEOC does not require a reasonable belief about the legality of the underlying activity when the employee is covered by the participation clause (i.e., filing a charge or participating in an EEOC investigation).  This is true even if the underlying alleged discriminatory action was legal or the Charge was untimely.  It even notes that the employee’s allegations may be malicious, defamatory and wrong, but still be protected.  Even though it recognizes that many federal courts – including the Sixth Circuit which has jurisdiction over Ohio and the Eleventh Circuit with jurisdiction over Georgia – do not consider internal EEO and harassment complaints to be covered by the participation clause unless the employee also filed a Charge with the EEOC, the EEOC explicitly states that it views internal EEO complaints to be protected “participation” which does not require the employee to have a reasonable belief about the validity of the allegations or to even tell the truth.  (Nonetheless, the EEOC continues to discuss situations involving internal EEO complaints under the opposition standard throughout the Guidance).  Accordingly, this would prevent an employer from taking disciplinary action against an employee who provided incorrect (and possibly false and fabricated information) during an internal EEO or harassment investigation:

Thus, the application of the participation clause cannot depend on the substance of testimony because, “[i]f a witness in [an EEO] proceeding were secure from retaliation only when her testimony met some slippery reasonableness standard, she would surely be less than forth-coming.” These protections ensure that employers cannot intimidate their employees into forgoing the complaint process and that those investigating can obtain witnesses’ unchilled testimony. 

Encompasses Internal Complaints. The Commission also views “participation” as encompassing internal EEO complaints to company management, human resources, or otherwise made within an employer’s internal complaint process before a discrimination charge is actually filed with the EEOC or a state or local Fair Employment Practices Agency.  The text of Title VII prohibits retaliation against those who “participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

There were a few areas of protected activity that the EEOC discussed more extensively than others.  First, it emphasized that the actions of HR employees, managers and supervisors would be constitute protected activity even if their job duties involved remedying harassment and discrimination and granting reasonable accommodations, etc.  The EEOC also suggested that an employee’s violation of pay confidentiality policies could constitute protected conduct and notes that the NLRA and certain Executive Orders governing federal contractors and subcontractors cover the confidentiality of compensation information.  However, all of the examples provided in the Guidance involved employees who were protesting pay discrimination based on specific information, which would constitute protected opposition discussed earlier in the Guidance.

Employment and other actions can be retaliatory even if they do not constitute actionable discrimination because the retaliation standard is broader than the discrimination standard.   An action can constitute retaliation if it would deter a reasonable person from engaging in protected conduct, even if it does not actually deter the plaintiff.  The standard obviously includes various employment actions, but can also include non-employment actions, such as retaliation against someone associated with the protected employee, defamation, bad-mouthing the employee to the media, poor job references, surveillance, closer scrutiny of performance, disclosing confidential information about the employee, etc.   That being said, minor and trivial actions are still not actionable.

An employee’s opposition activity can lose statutory protection when the employee’s opposition manifests itself in an unreasonable manner. As examples, the EEOC discusses employees who make an unreasonable number of specious complaints, badgers a co-worker to provide or change a witness statement, or involves illegal conduct (such as threat of violence).  “Opposition to perceived discrimination does not serve as license for the employee to neglect job duties. If an employee’s protests render the employee ineffective in the job, the retaliation provisions do not immunize the employee from appropriate discipline or discharge.”   

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

  

ERISA Does Not Protect Opposition to Statutory Violations or Internal Complaints without a Proceeding or Inquiry

On Friday, a divided Sixth Circuit Court of Appeals affirmed the summary judgment dismissal of a “whistleblower” claim that was found to be governed, and completely preempted, by ERISA.   Sexton v. Panel Processing, Inc. , No. 13-1604 (6^th Circ. 5-9-14).  In that case, the plaintiff was terminated approximately six months after he protested the employer’s refusal to sit additional employees who had been elected to the Board of Directors and its removal of him from a trustee position with the company’s retirement plan.  He emailed the Board Chairman alleging, among other things, that his removal as a trustee violated ERISA and if not rectified, he would report the violations to the DOL.  The Company did not respond to his email and he never filed a complaint with the DOL.   He ultimately filed a wrongful discharge lawsuit, which was removed by the employer to federal court under ERISA.  The Court found that, unlike Title VII, the FLSA and other statutes, ERISA protects only an employee’s participation in a “proceeding” or “inquiry” relating to ERISA.  It does not contain an opposition clause which would protect unsolicited complaints, like the one made by the plaintiff. 

Section 1140 of ERISA provides in relevant part:

It shall be unlawful for any person to discharge, fine, suspend, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this chapter or the Welfare and Pension Plans Disclosure Act.

The parties agreed that there was no proceeding in place.  The Court found that the “giving of information” included “any” information, including information about a claim for benefits which did not relate to alleged violations of ERISA.   The Court also concluded that there was never any “inquiry,” no matter how the term was interpreted because there was never any investigation or question posed about his allegation.  Because there was never any proceeding or inquiry made by the employer or the DOL, this anti-retaliation provision could not apply.  The Court was even reluctant to broaden the meaning of this statute to include unsolicited complaints which ultimately lead to an inquiry, investigation or proceeding.    The Court also rejected attempts to analogize this statute to Title VII or the FLSA because those statutes specifically protected an employee’s opposition to unlawful practices.   Unlike those statutes, ERISA contains additional enforcement mechanisms (such as criminal prosecution and reporting requirements) which could explain why Congress chose not to include an opposition clause for employees.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Upholds Termination for Secretly Recording Client Conversations to Support Discrimination Claim

Last week, the Sixth Circuit Court of Appeals affirmed summary judgment on a discrimination and retaliation claim where the plaintiff had been fired for, among other things, secretly tape-recording conversations in violation of company policy.  Jones v. St. Jude Medical, No. 11-4211 (6^th Cir. 11/8/2012).  The plaintiff argued that her recording constituted protected conduct under Title VII because she was gathering information in support of claims of discrimination she planned to file with the EEOC and to support her later lawsuit.  However, the court found that she could have gathered evidence without violating the policy.  

“An employee may claim protection for activities opposed to alleged discrimination so long as the manner of the employee’s opposition is reasonable.”  In this case, the Court found that the plaintiff:
 

has not shown why she needed to violate the recording policy in order to oppose defendants’ alleged discrimination. She might have taken notes of the conversations, obtained the same information through legal discovery, or simply asked her interlocutors for permission to record. [Plaintiff] argues that her conduct was reasonable because the recordings were not illegal, did not breach confidential information, were not disruptive of business operations, and were not disseminated beyond the litigation. But none of this suggests that the recording policy was illegitimate or that it would have been futile to oppose the alleged discrimination in ways that did not violate the policy.”

The Court also rejected her contention that the records did not actually motivate her termination when the employer had known about them since May, but did  not terminate her until December.   However, the evidence also showed that the plaintiff did not produce copies of the recordings to the employer until October, at which time a vice-president reviewed them before deciding to terminate her.  The court refused to fault the employer for conducting an investigation before terminating the plaintiff.  The plaintiff could not overcome evidence of the employer’s honest belief.

In addition, the Court determined that even if one of the reasons given for terminating the plaintiff was pretextual, that did not mean that the second reason was similarly pretextual if it arose independently of the first explanation and was made by a different corporate officer.  In this case, the plaintiff had been fired for poor performance and the inappropriate recordings.  There were two separate investigations made by two different managers.   Thus, the reasons could rise and fall independently.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Court of Appeals Upholds OCRC Order That Employer Retaliated Against Office Manager For Informing Employee of Discrimination.

Last week, the Franklin County Court of Appeals upheld an order by the Ohio Civil Rights Commission reinstating an office manager who had been fired in retaliation for telling an African-American employee that he had been denied health insurance which was provided to white employees and for helping that employee bring a discrimination claim against the employer. HLS Bonding v. Ohio Civ. Rights Comm., 2008-Ohio-4107 (8/14/08). The court of appeals found sufficient evidence in the record to prove both a prima facie case of retaliation and that the employer’s explanation for his termination was pretextual -- i.e., a disguise to hide the true retaliatory motive.

In that case, the office manager had received nothing but positive performance evaluations and raises. Indeed, only a month before he was terminated, the managing partners asked him to join their business partnership. The office manager asked the employer to extend health insurance benefits to the company’s only full-time African-American employee, but they refused. He then told the employee how other (white) employees were provided with insurance benefits and that he thought the employee should receive similar benefits. That employee – who had requested insurance benefits in the past -- then confronted the employers (while taping the conversation with knowledge of the office manager) and filed a Charge of Discrimination with the OCRC which listed the office manager as a witness. After receiving a copy of the Charge, the employer then demoted the office manager, terminated all employee health insurance benefits, demoted the office manager again and ultimately fired him – purportedly for poor performance and insubordination.

The office manager filed a Charge with the OCRC alleging that he had been fired in retaliation for the African-American employee filing his Charge. Following a public hearing, the Commission ruled in favor of the office manager and ordered the employer to reinstate him and to pay him within ten days by certified check all back pay, benefits and interest (less his interim earnings).

Interestingly, the Court affirmed the OCRC’s ruling that the employer retaliated against the office manager under the Ohio Civil Right Act’s participation clause, rather than the opposition clause. Ohio Revised Code § 4112.02(I) provides that "[i]t shall be an unlawful discriminatory practice * * * [f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section ["opposition clause"] or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code ["participation clause"]." (emphasis added). This is probably because, as noted in my June 28, 2008 blog, “’[t]he distinction between employee activities protected by the participation clause and those protected by the opposition clause is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings.’ Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989).”

The Franklin County Court then noted that “reliable, probative, and substantial evidence supports the finding that [the office manager] engaged or participated in a protected activity. Anyone who participates in bringing a claim of unlawful discriminatory practice is engaging in a protected activity. [The office manager] alerted [the African-American employee] to the health care issue. [The office manager] told [the African-American employee] that he would testify on [the employee’s] behalf before the Commission. [The employee] named [the office manager] as a witness when he brought his claim. [The office manager] told his employer that it should offer [the employee] health care benefits [and] was present and knew [the employee] was "wired," when [he] then asked their employer for health care benefits.”

The court failed to explain why the office manager’s conduct was not protected opposition. As recently noted by the Sixth Circuit in Niswander v. The Cincinnati Ins. Co., No. 07-3738 (6th Cir. 6/24/08), “’The opposition clause . . . covers conduct such as “complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices; refusing to obey an order because the worker thinks it is unlawful under Title VII; and opposing unlawful acts by persons other than the employer—e.g., former employers, union, and co-workers. . . . We have explained that ‘the only qualification that is placed upon an employee’s invocation of protection from retaliation under Title VII’s opposition clause is that the manner of [the employee’s] opposition must be reasonable.” In contrast, the Sixth Circuit has noted that the participation clause “extends to persons who have participated in any manner in Title VII proceedings.” In this case, the Franklin County Court rejected the employer’s arguments that the office manager’s conduct could not constitute protected participation because it pre-dated the filing of the OCRC/EEOC Charge and any government investigation because the court considered "the instigation of proceedings leading to the filing of a complaint or a charge * * * is a prerequisite to protection under the participation clause” under Sixth Circuit precedent. It seems more likely that the OCRC and the court did not want to address the reasonableness of the office manager’s conduct under the opposition clause precedent.


The court found the evidence also showed that there was a causal connection between the filing of the OCRC Charge and the demotions and eventual termination of the office manager because the office manager’s first demotion – removing his authority over the benefit plans – took place only two weeks after the employer’s receipt of the OCRC Charge.

The court also agreed with the conclusion of pretext from the employer’s articulated explanation for why it demoted and terminated the office manager. First, the employer never counseled the office manager about his supposed poor performance before his demotion. On the contrary, they had recently asked him to become one of their business partners. In addition, the OCRC hearing officer office did not find the witness to be credible that the office manager was fired because he scared the managing partner during a conversation. Finally, the weight of the circumstantial evidence presented in the prima facie case was much more convincing as to why the office manager was fired.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-4107.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Finds Production of Irrelevant Confidential Documents During Discovery Is Not Protected Participation or Opposition Under Title VII

On Tuesday, the Sixth Circuit decided “the scope of protection that should be afforded to employees who disseminate confidential documents in violation of their employer’s privacy policy in the context of employment-related litigation.” In that case, the plaintiff had been fired after providing documents with confidential client information to the attorneys who were prosecuting a class action pay discrimination lawsuit on the behalf of her and other female employees. The Sixth Circuit held that her conduct was not protected by federal law and, therefore, the employer was permitted to discharge her for violating its confidentiality policy. Niswander v. The Cincinnati Ins. Co., No. 07-3738 (6th Cir. 6/24/08).

In Niswander, the plaintiff joined a class action pay discrimination lawsuit against her employer in 2003. She was a claims adjuster who worked from her home. She later came to believe that her employer retaliated against her for participating in that lawsuit, informed the human resources department in 2004 and filed an EEOC Charge the following year. She also informed the class action attorneys of her perceived retaliation and they indicated that they were interested in pursuing a claim on her behalf. When, in connection with the pre-trial discovery process, her attorneys asked her to provide copies of any documents “related to her employment” and “any documents you think might be even remotely helpful to our case,” she complied with their request so that they would not suffer sanctions from the court for failing to comply with the discovery process. Importantly, no lawsuit had been filed on her behalf allegation unlawful retaliation against her.

The plaintiff “admitted in her deposition that she had “no documents to support an equal pay [claim].” Instead, she sent documents that she believed were relevant to” the employer’s “alleged acts of retaliation against her. Some of the documents that Niswander sent were copies of e-mails back and forth with her supervisors related to her job performance. Other documents, however, were claim-file documents that allegedly would jog her memory regarding instances of retaliation, but that did not in and of themselves contain evidence of retaliation. In sending the documents to her lawyers, some of which included information about” her employer’s clients, the plaintiff “thought everything was confidential” and that “anything [she] produced was all between” her and the company’s attorneys. However, when her employer received copies of the confidential documents which she had given to her attorneys (to give back to her employer), it terminated her for violating its confidentiality policy.

Title VII prohibits employers from “discriminat[ing] against any of his employees . . .
because [the employee] has opposed any practice made an unlawful employment practice by [Title VII] [the so-called “opposition clause”], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII] [the so-called “participation clause”]. 42 U.S.C. § 2000e-3(a).” In order to state a prima facie case of retaliation under Title VII, a plaintiff must show that (1) she engaged in protected activity (i.e., opposition or participation), (2) the employer knew of the employee’s protected activity, (3) the employee later suffered from an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action. Morris v. Oldham County Fiscal Ct., 201 F.3d 784, 792 (6th Cir. 2000). In Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006), the Supreme Court held that “the scope of Title VII’s retaliation provision is broader than that of Title VII’s discrimination provision.”

In Niswander, the court was required to decide whether the plaintiff’s provision of the confidential records to her attorneys constituted protected participation or opposition. “’The distinction between employee activities protected by the participation clause and those protected by the opposition clause is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings.’ Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989). With respect to the participation clause, we have recognized that the clause’s ‘exceptionally broad protections . . . extend[] to persons who have participated in any manner in Title VII proceedings. ‘Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000) (citation and internal quotation marks omitted). “[O]nce the activity in question is found to be within the scope of the participation clause, the employee is generally protected from retaliation.”

“’The opposition clause, on the other hand, covers conduct such as “complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices; refusing to obey an order because the worker thinks it is unlawful under Title VII; and opposing unlawful acts by persons other than the employer—e.g., former employers, union, and co-workers.’ Johnson, 215 F.3d at 579. We have explained that ‘the only qualification that is placed upon an employee’s invocation of protection from retaliation under Title VII’s opposition clause is that the manner of [the employee’s] opposition must be reasonable.”

The court then held that the production of the confidential documents to her attorneys did not constitute protected participation because the documents were admittedly not relevant in any way to the pay discrimination claims being asserted in the pending lawsuit. “An individual’s delivery of relevant documents during the discovery process or the giving of testimony at a deposition clearly falls within the ambit of participating ‘in any manner’ in a Title VII proceeding. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (explaining that the purpose of the participation clause ‘is to protect the employee who utilizes the tools provided by Congress to protect his rights’).” However, to find that the plaintiff’s actions in this case constituted protected participation in the pay discrimination lawsuit, “would provide employees with near-immunity for their actions in connection with antidiscrimination lawsuits, protecting them from disciplinary action even when they knowingly provide irrelevant, confidential information solely to jog their memory regarding instances of alleged retaliation.”

Whether the plaintiff’s conduct constitutes protected opposition conduct depends upon a balancing of her interests with that of her employer. “A balance must be achieved between the employer’s recognized, legitimate need to maintain an orderly workplace and to protect confidential business and client information, and the equally compelling need of employees to be properly safeguarded against retaliatory actions. Allowing too much protection to employees for disclosing confidential information may perversely incentivize behavior that ought not be tolerated in the workplace—namely, the surreptitious theft of confidential documents as potential future ammunition should the employee eventually feel wronged by her employer. On the other hand, inadequate protection to employees might provide employers with a legally sanctioned reason to terminate an employee in retaliation for engaging in activity that Title VII and related statutes are designed to protect.”

Prior decisions had indicated that employees did not have the right to search their employer’s confidential personnel and other files in order to obtain documents in support of their discrimination claims. In another case, the court permitted an employee to provide his attorney with documents which he “innocently” obtained because they were on the hard drive of computer assigned to him by his employer.

“Based on the analysis applied by the courts in the cases discussed above, we believe that the following factors are relevant in determining whether Niswander’s delivery of the confidential documents in question was reasonable: (1) how the documents were obtained, (2) to whom the documents were produced, (3) the content of the documents, both in terms of the need to keep the information confidential and its relevance to the employee’s claim of unlawful conduct, (4) why the documents were produced, including whether the production was in direct response to a discovery request, (5) the scope of the employer’s privacy policy, and (6) the ability of the employee to preserve the evidence in a manner that does not violate the employer’s privacy policy. These factors are designed to take into account the employer’s ‘legitimate and substantial interest in keeping its personnel records and agency documents confidential’ and yet protect the employee’s alleged ‘need for surreptitious copying and dissemination of the documents.’”

In this case, the plaintiff “could have preserved the alleged evidence of retaliation in other ways; in particular, she could have taken notes of the incidents that she believed demonstrated retaliation instead of delivering documents that contained confidential policyholder information. Producing confidential documents for the sole purpose of jogging one’s memory, when there are readily available alternatives to accomplish the same goal, does not constitute the kind of reasonable opposition activity that justifies violating a company’s privacy policy.”

“Although employees deserve protection when they make reasonable attempts to preserve evidence of illegal employment practices, including discrimination and retaliation, ‘we are loathe [sic] to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation.’ O’Day, 79 F.3d at 763. To hold in favor of Niswander would turn the opposition clause into ‘a license to flaunt [sic] company rules or an invitation to dishonest behavior.’ Id. at 764. So even after viewing the evidence in the light most favorable to Niswander, we conclude that her production of the documents was not reasonable under the six factor test set forth above.”

“The only factors that arguably weigh in Niswander’s favor are factors one and two, but even those do not weigh heavily in her favor. Although she had access to the documents through her employment, Niswander did not innocently acquire the documents in the same manner as the plaintiff in Kempcke, who came across evidence of potential age discrimination in a company computer that had been issued to him. See Kempcke, 132 F.3d at 445. Rather than innocently stumbling upon evidence of illegal employment practices, Niswander specifically searched through the CIC documents that she had at her home office for the purpose of uncovering evidence of retaliation. Such behavior cannot be classified as truly innocent acquisition.”

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0221p-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.