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Best Ohio Employment Discrimination Lawyer Answer: Can I take documents from my work computer as evidence for my lawsuit? What Evidence Do I need to bring a lawsuit against my employer for race or gender discrimination? Can I sue my current employer for religious or age discrimination even though I haven’t been fired yet?

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The dedicated employment attorneys of Spitz, The Employee’s Law Firm are always on the lookout for changes in the law that may best help their clients prove their discrimination claims against their employers. As our employment law attorneys have blogged about before, employment discrimination is a constantly changing field of law with different many ways to prove discrimination. (See Can I Sue My Employer For Age Discrimination?; Can I Sue My Employer For Discrimination Even If I Already Quit My Job?; How Do I Prove Race Discrimination Against My Boss?).

Title VII of the Civil Rights Act of 1964 prohibits discrimination by your boss, manager or supervisor based on race/color, religion, gender/sex, and national origin. Similarly, Americans with Disabilities Act (“ADA“) prevents discrimination based on an employee’s actual or perceived disability, while the Age Discrimination in Employment Act (“ADEA“) protects against discrimination based on an employee being older than 40. Discrimination occurs when these protected class categories are used to make decisions with respect to any terms, conditions, or other matters related to their employment, including hiring, promotion, demotion, equal pay, and wrongful termination. These protections are also in Ohio state law under Section 4112.02 of the Ohio Revised Code.

As you are likely aware, any claim of discrimination needs to be backed up with some evidence. Evidence can be statements, testimony, pictures, or documents, for example. As you might imagine, your employer will likely have better access to business documents, electronic files, emails, or other evidence that would be helpful in proving your claim of discrimination. So if your employer is discriminating against you, can you legally take documents with you from your office or your work computer for evidence in a future lawsuit? For example, if your boss sent you a sexually harassing comment in a work memo, can you copy that memo from a client file and walk out the door with it? Or, let’s say you found a document that shows that hiring decisions were being made on the basis of race, gender, or national origin, can you take it with you when you leave?

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This issue was recently addressed in a case out of the Supreme Judicial Court of Massachusetts – the highest court in the state. In Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., the employee was actually a former attorney who worked at the defendant law firm. Kamee Verdrager felt she was being discriminated against based on her gender and brought suit alleging that male attorneys at the firm were given preferential treatment, and that she was wrongfully fired from the firm based on her gender. The employer argued that Verdrager was actually terminated for copying attorney-client privileged documents to assist her in bringing her discrimination claim.

The Supreme Judicial Court of Massachusetts addressed the issue of whether Verdrager should be allowed to take documents from her former employer to assist in proving her claims of discrimination:

The question whether an employee’s acts of self-help discovery in aid of claims under G. L. c. 151B, § 4, may ever, under any circumstances, constitute protected activity is one of first impression for this court. Taking into consideration the interests at stake and the views of other courts that have addressed the matter, we conclude that such conduct may in certain circumstances constitute protected activity under that statute, but only if the employee’s actions are reasonable in the totality of the circumstances. See Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 725 (6th Cir. 2008) (“oppositional activity must be reasonable in order to receive protection”). As the New Jersey Supreme Court recognized, it is best to take “a flexible, totality of the circumstances approach that rests on consideration of a wide variety of factors, all of which must be balanced in order to achieve the essential goals embodied in” our antidiscrimination laws. See Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 269 (2010) (Quinlan).

Taking this approach requires a determination, based on the facts of each case, whether the employee’s actions were “reasonable under the circumstances” and, as a result, constituted protected conduct under G. L. c. 151B. See Niswander v. Cincinnati Ins. Co., supra. In this way, we strike a careful “balance . . . 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.” Id. at 722.

The Court went on to identify seven factors which may show whether the employee’s actions are “reasonable in the totality of the circumstances” when it comes to employees taking potential evidence from their employer:

The first factor asks “how the employee came to have possession of, or access to, the document.” Quinlan, supra at 269. This factor favors “the employee who [does not] find[] a document by rummaging through files or by snooping around in offices of supervisors or other employees.” Id.

A second factor seeks to “balance [the] relevance” of the seized documents to the employee’s legal action against the disruption caused by the seizure “to the employer’s ordinary business.” Id. at 270. In so doing, “the focus must be on whether the use or disclosure of the document unduly disrupted the employer’s business, rather than on any effect it had on individual company representatives.” Id.

A third factor looks to “the strength of the employee’s expressed reason for copying the document rather than, for example, simply describing it or identifying its existence to counsel so that it might be requested in discovery.” Id.

A fourth factor asks

“what the employee did with the document. If the employee looked at it, copied it and shared it with an attorney for the purpose of evaluating whether the employee had a viable cause of action or of assisting in the prosecution of a claim, the factor will favor the employee. On the other hand, if the employee copied the document and disseminated it to other employees not privileged to see it in the ordinary course of their duties or to others outside of the company, this factor will balance in the employer’s favor.” Id. at 269.

A fifth factor takes into consideration “the nature and content of the particular document in order to weigh the strength of the employer’s interest in keeping the document confidential,” id., while the sixth looks to “whether there is a clearly identified company policy on privacy or confidentiality that the employee’s disclosure has violated.” Id. at 270. As the New Jersey Supreme Court noted, the “evaluation of this [latter] factor should take into account considerations about whether the employer has routinely enforced that policy.” Id.

A seventh and final factor takes into account “the broad remedial purposes the Legislature has advanced through our laws against discrimination, including [G. L. c. 151B].” Id. at 271. It also considers the decision’s effect on “the balance of legitimate rights of both employers and employees.” Id. This final factor is “a supplement” to the other factors, and plays a decisive role only in the “close case” in which it would be appropriate for these broader considerations to “tip the balance.” Id. at 270.

The application of this test in particular cases may well result in determinations that certain acts of self-help discovery by the same employee are reasonable, while others are not.

As you can see, courts will look at a variety of factors in determining whether this so called “self-help discovery” is actually allowable under the law. So what lesson can be learned from Verdrager? Perhaps the most important lesson is to use wise judgment when gathering documents from your employer for use in a future lawsuit. Don’t snoop; don’t copy confidential documents which you are not entitled to see as an employee; and don’t disrupt business in an effort to gather evidence. Be reasonable, and remember that many of these documents will be discoverable anyway in a lawsuit against your employer which you may file down the road.

If you are fearful of the documents being destroyed, place copies in a drawer that no one goes in or in an electronic file that will likely be left alone. Take pictures of the documents where you put them (not each page) to be able to prove that they existed. Do not displace the originals! But, immediately upon being terminated you should contact the best employment discrimination attorney that you can find so that he or she can make sure that such evidence is preserved. Under this scenario, the employer cannot accuse you of stealing, because you did not take anything out of the office, but you stand a better chance of keeping the evidence safe.

If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against or harassed based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.


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