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  • Writer's picturePaul Peter Nicolai

Employer’s Secret Computer Search Is Unlawful Retaliation

Updated: Jan 3, 2023

A federal court of appeals has held that a forensic search of an employee’s work computer could constitute unlawful retaliation for an employee’s discrimination claim — even if the employee is not aware of the employer’s actions.

A city employee submitted a formal written complaint saying her supervisor engaged in sexual discrimination by treating male and female employees differently and retaliated against those coming forward. After receiving the complaint, the supervisor ordered a forensic search of the employee’s work computer, which revealed the employee’s nude photographs and evidence that the employee used the computer for a second job.

The city terminated the employee for violating the city’s computer policies. Though the city had a progressive discipline policy, it was not followed, and the employee was directly terminated.

The employee sued the city, saying the search constituted unlawful retaliation. The lower court granted summary judgment for the city, holding that a reasonable worker could not be dissuaded from making a charge of discrimination due to an investigation they did not know.

The Court of Appeals reversed the retaliation claim. It found that the employee had established a retaliation case under Title VII. The court explained that the employee’s lack of knowledge does not shield the employer from a retaliation claim. It concluded that the employee’s firing was a tangible consequence of the computer search that would have dissuaded a reasonable worker from making a discrimination complaint. The court expressed particular concern with the potential unfairness of an employer shielding itself by conducting the adverse action in secret.

WHY THIS IS IMPORTANT...Investigations of employees need to have a documented business purpose. If they do not, it allows others to decide what the purpose was.

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