In a case of first impression, the New Jersey Supreme Court recently decided that an employee may copy confidential company documents to support the employee’s claim of gender discrimination. The Court found that this was activity protected by New Jersey’s Law Against Discrimination (“LAD”) N.J.S.A. 10:5-1 to 42.
The company in question, Curtiss-Wright Corp., promoted a male employee with less experience and qualification than the plaintiff, Joyce Quinlan. She claimed she was passed over because of gender discrimination.  Afterward, she copied numerous confidential company documents, the most damaging of which was a performance appraisal of the male employee that stated he needed to improve his job performance in several areas.  Ms. Quinlan believed the appraisal supported her claims and immediately provided it to her attorney.
Upon learning that she had copied the performance appraisal, Curtiss-Wright fired her for being “a thief.”  She sued the company in the Law Division of the Superior Court of New Jersey for gender discrimination and retaliation.  A trial was held and the jury found that her actions in copying the performance appraisal were protected by the LAD and that the company had engaged in unlawful retaliation by firing her.
The case was appealed, and the jury’s verdict was overturned by the Appellate Division of the Superior Court.  Thereafter, New Jersey’s Supreme Court agreed to hear the case.  Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010).
The Supreme Court established seven factors to be considered in determining whether such activity is protected.  Those factors are: 1) how the employee came into possession of the documents; 2) what the employee did with the documents; 3) the nature and content of the documents to assess the employer’s interest in keeping the documents confidential; 4) whether the company had a clearly identified policy on privacy or confidentiality that the employee violated; 5) whether the use or disclosure of the documents was unduly disruptive to the company’s business; 6) the strength of the employee’s expressed reason for copying the documents, rather than describing them or identifying them to counsel; and 7) the effect permitting or prohibiting the use of the documents will have on the balance of rights generally between employees and employers.
The Supreme Court held that these factors weighed in favor of Ms. Quinlan. Copying the performance appraisal was protected by the LAD. The Supreme Court reinstated the jury’s verdict in her favor.
The Court did not establish a general rule that such copying of confidential documents will always be protected by the LAD.  Instead, the Court stated that the seven factors it established were to be applied on a case-by-case basis.


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