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Litigation News

Litigation News | 2022

Employer’s Secret Forensic Search Is Unlawful Retaliation

Shirin Afsous


  • In Smith v. City of Pelham, an employee filed a sexual discrimination complaint against her supervisor. The supervisor ordered a forensic search of her work computer, leading to termination for policy violations.
  • The Eleventh Circuit affirmed the lack of privacy claims but reversed and remanded the retaliation claim.
  • The court ruled that the employee's lack of knowledge about the search did not shield the employer from a retaliation claim and found evidence of pretext for retaliation.
Employer’s Secret Forensic Search Is Unlawful Retaliation
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Employers beware: 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. ABA Litigation Section leaders say that the decision serves as a reminder that employee investigations should have a documented business purpose.

Employer Finds Computer Policy Violation after Discrimination Complaint

In Smith v. City of Pelham, a city employee submitted a “formal written complaint” stating that her supervisor, the police chief, engaged in sexual discrimination by treating male and female employees differently and retaliated against those coming forward. About a week after receiving the complaint, the chief ordered a forensic search of the employee’s work computer, which revealed the employee’s personal nude photographs and evidence that the employee used her work 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, a process that addresses an employee’s workplace behavior by providing feedback through a series of increasingly formal steps, the chief did not follow any of the initial stages.

The employee sued the city in the U.S. District Court for the Northern District of Alabama, alleging that the search violated the Fourth Amendment and Alabama privacy law, and constituted unlawful retaliation. The district court granted summary judgment in favor of the city, holding that a reasonable worker could not be dissuaded from making a charge of discrimination due to an investigation of which she had no knowledge.

An Action Can be Adverse Even if the Employee Lacks Knowledge

The U.S. Court of Appeals for the Eleventh Circuit affirmed the summary judgment with respect to the privacy claims but reversed and remanded the retaliation claim. As to the privacy claims, the court of appeals found that the employee did not have a reasonable expectation of privacy in her work computer files because the employer’s policy was clear that her computer could be monitored.

However, the Eleventh Circuit held that “[t]he district court erred when it concluded that the [employer’s] forensic search…could not constitute a materially adverse employment action.” It found that the employee had established a prima facie case of retaliation under Title VII, which requires a plaintiff to establish that “(1) she engaged in statutorily protected activity; (2) she suffered a materially adverse employment action; and (3) there was some causal connection between the two events.” Establishing the prima facie case creates a presumption that there was discriminatory intent, which the employer may rebut “by articulating a legitimate, non-discriminatory reason for the employment action.”

The appellate court explained that the employee’s lack of knowledge does not shield the employer from a retaliation claim. In support, it relied upon Burlington Northern & Santa Fe Railway Co. White, in which the U.S. Supreme Court held that retaliation is material if it “might have dissuade[d] a reasonable worker from making or supporting a charge of discrimination.” The court of appeals further noted that the Burlington standard was an objective one that did not require employees to know all the retaliatory conduct, but that did require consideration of the totality of the circumstances. Accordingly, it concluded that the employee’s firing was a “clearly tangible consequence[] of the computer search” that would “have dissuaded a reasonable worker from making a discrimination complaint.” The appellate court expressed particular concern with the potential unfairness of an employer shielding itself by conducting the adverse action in secret, pointing out that it had previously found “evidence of being black-balled may contribute to a finding of a materially adverse employment action.”

Additionally, the Eleventh Circuit felt “compelled to point out that…[the employee] presented evidence sufficient for a jury to find that [the chief’s] reason for instigating the computer search was pretext for retaliation”—even though the district court had not analyzed whether the city had rebutted the presumption of intentional discrimination. In particular, the appellate court noted that the chief’s knowledge of the discrimination complaint, timing of the forensic search, and failure to follow the progressive discipline process all evidenced pretext.

Requiring Employee Knowledge Could Chill Claims

According to Litigation Section leaders, the Eleventh Circuit correctly rejected the notion that an adverse employment action requires the employee’s knowledge. “The court made a salient point that the argument does not make sense when applied to other scenarios, like promotions, a bonus, or other conversations that usually occur without the employee,” notes Ian H. Fisher, Chicago, IL, cochair of the Section’s Class Actions & Derivative Suits Committee. “An adverse employment action can take place outside of the employee’s knowledge that could chill an employee from reporting and making a claim,” he explains. “The court reached the right conclusion. It’s a question of fact for the jury. A reasonable jury could conclude that the [employer] acted with retaliatory animus,” Fisher highlights.

Employers Should Not Ignore Progressive Discipline Policies

“The takeaway for employers here is that an investigation and discipline of an employee for misconduct or violation of work policies must have a business justification for the action, ideally one that is documented in writing,” advises Emily A. McNee, Minneapolis, MN, cochair of the Young Lawyers, Membership, and Diversity Subcommittee of the Section’s Appellate Practice Committee. “The investigatory search here did not seem to be tied to a particular purpose,” she concludes.


  • Katherine G. Vazquez, “Agreed Transfer Is Not an Adverse Employment Action,” Litigation News (June 2, 2021).