An employee who had delivered confidential, proprietary documents to her lawyers in a class-action employment lawsuit against the company was properly fired for violating the company’s privacy policy and code of conduct, the Sixth Circuit rules.

The worker was a claims adjuster who worked from home, and who subsequently joined in a sex discrimination lawsuit against her employer. The plaintiffs attorney had requested “any” documents related to her employment or which might be “remotely helpful” to the case, and the worker sent material she believed was relevant to the case, including confidential information about the company’s policyholders. The company’s policies expressly prohibited the disclosure of confidential information, including personal information about policyholders, and subsequently terminated the employee when the incident came to their attention. When she sued the company for retaliation, a lower court found that she was not engaged in a protected activity when she released information concerning the policyholders.

On appeal, the Sixth Circuit agreed with the district court, observing that if the documents that the worker gave to her lawyers “had been directly or even indirectly relevant” to the claims raised in the discrimination lawsuit, “her delivery of those documents would clearly constitute participation in that lawsuit.” The Court outlined six factors to determine whether a release of confidential documents 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.”

The Court says that “concluding that [her] conduct here is protected participation in the [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.” Niswander v. The Cincinnati Insurance Co.