Can I take work documents to prove my discrimination claim?

Question:

I was recently denied a raise at my company. I spoke to some of my coworkers, and I'm starting to believe that there's sex discrimination going on at our company. It seems that the women make a lot less than the men and are a lot less likely to get raises than the men. I complained about it to our manager, but he said I was imagining things and that I should mind my own business and do a better job if I want a raise. I know there's a payroll list in our manager's office that says how much everyone makes. If I make a copy of it, can I get in trouble? I'm concerned that I might be disciplined or fired for complaining, and I want to have some sort of proof that I was right.

Answer:

Yes, you absolutely can get in trouble for copying documents that you don't have permission to access. Your interest in the list is understandable, as is your desire to collect proof of discrimination. However, from a legal perspective, this is a very dangerous strategy.

While your employer cannot legally fire you for making a complaint about sex discrimination, it can fire you for violating its rules about confidentiality and access to personnel information. Going into a manager's office and copying a list with payroll information for other employees would likely violate many employers' policies on confidentiality.

Even if your employer doesn't find out about you copying the list right away, it could put your claim of sex discrimination in jeopardy. An employer may not fire an employee for making a good faith complaint about possible discrimination. This is illegal retaliation, plain and simple. If your employer breaks the law and fires you for making a complaint, at least you would have legal recourse.

However, that isn't true if you copy confidential documents. Under a legal theory called the "after-acquired evidence doctrine," an employer can use evidence it discovers later to justify its illegal firing. Here's how it works. Your employer will find out that you copied the payroll documents when you use present them in your lawsuit. Your employer will then argue that, even if it fired you illegally for making the discrimination complaint, it had the legal right to fire you anyway for taking confidential documents. Therefore, even if the employer violated the law, you have no right to collect damages, because you would have been fired for a different reason.

Sound circular? Well, it is. But that's the way the law works. Looking on the bright side, your employer will most likely have to hand over those payroll documents once you file a lawsuit alleging sex discrimination. For now, however, you should definitely not take or copy anything you aren't entitled to have.

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