Can a policy violation also be protected activity? Here's the scenario: a client in an employment discrimination case secretly tape-records conversations and discussions in her workplace because she believes she is being subjected to gender discrimination (such a recording would be legal in Kentucky because the client, the recorder, consents to the recording). But the employer has a policy forbidding tape-recording in the workplace. After the client is fired and files a gender discrimination suit, the employer learns of the recordings and contends that her remedies should be limited because this violation of policy would have justified her firing. This is known as the after-acquired evidence doctrine discussed by the Supreme Court in McKennon v. Nashville Banner, 513 U.S. 352 (1995). Some courts recognize the problems that employers raise for themselves in making arguments like this.
In Loudermilk v. Best Pallet, LLC, 636 F.3d 312 (7th Cir. 2011), the plaintiff had raised numerous complaints about discriminatory treatment in the workplace. He took some photos for purposes of supporting his complaints. The employer, after much floundering around, eventually claimed that it fired the plaintiff for taking the photos. The Seventh Circuit, which reversed a district court's grant of summary judgment to the employer, took a dim view of the employer's argument:
Best Pallet says that it fired Loudermilk not because of the note's content, but because he had taken pictures of the work site, in violation of company policy. But it did not give thatexplanation to Loudermilk—or for that matter the EEOC. Best Pallet told the agency that it let Loudermilk go as part of a reduction in force (though Loudermilk's name was not on a list of workers that had been prepared for that purpose). In court it abandoned that explanation and contended that Loudermilk had resigned, or that his departure was a "mutual decision." Since Loudermilk says that he did not resign, that explanation can't prevail at the summary judgment stage. This led to the "fired for photography" contention, which is problematic not only because the no-photography policy may have been cooked up after the fact, but also because it comes close to conceding retaliation.
In Heller v. Champion Int'l Corp., 891 F.2d 432 (2nd Cir. 1989), the employer argued that it was justified in firing the plaintiff, regardless of the terms of any implied contract, because he had been disloyal by taping conversations with company personnel. The Second Circuit rejected this argument and, noting that the plaintiff also contended that he was a victim of age discrimination, observed as follows:
At the time the events of this lawsuit were unfolding, Heller believed that Champion was not only in the process of breaking its promises to him, but that it was also discriminating against him because of his age. His surreptitious tape-recording, to be sure, represents a kind of "disloyalty" to the company, but not necessarily the kind of disloyalty that under these circumstances would warrant dismissal as a matter of law. The Age Discrimination in Employment Act prohibits employers from discharging individuals because they have "participated in any manner in an investigation, proceeding, or litigation under this chapter."
Some courts have reached different conclusions and all have cautioned that there are limits on what an employee may do to gather evidence to bolster their discrimination complaints. The circumstances of each case, accordingly, will have to be probed and considered carefully.
