Imagine you have been documenting harassment for months. You have emails proving your boss made discriminatory comments. You’ve kept records of how male colleagues doing identical work get promoted and paid better while you’re passed over. You know you have a case.
So late one night, before your upcoming “performance improvement plan” meeting that feels like a setup for termination, you forward key emails to your personal account. You download the spreadsheet showing pay disparities. You take screenshots of the discriminatory messages. You even upload some documents to ChatGPT to ask if you have a legal case.
You think you’re being smart—preserving evidence before it disappears.
You just created a massive liability problem that could sink your entire case.
The Confidentiality Agreement You Forgot You Signed
Here’s what I see with increasing frequency in my employment law litigation practice: Employees with legitimate discrimination, harassment, or retaliation claims who have unknowingly violated confidentiality agreements, non-disclosure agreements, or data security policies in their attempt to gather evidence. When they finally consult an attorney, we discover they’ve:
- Downloaded “confidential” company documents to personal devices
- Forwarded internal emails to personal accounts
- Uploaded sensitive information to AI chatbots for “free legal advice”
- Shared company information with friends, family, or on social media
- Violated non-disparagement clauses by venting about their employer online
Every single one of these actions can—and frequently does—get used against the employee later when they try to pursue their legitimate legal claims against the Company. It does not really matter whether the Company did something wrong. If the employee does any of these things, they can be used against the employee. These actions can even provide a viable legal claim against the employee by the Company!
“But I’m a Whistleblower!” Doesn’t Always Work
You might think: “I was gathering evidence of illegal discrimination. That’s protected activity. I’m a whistleblower!”
You would be logical to think that. But you would also be wrong in most cases.
While there are some statutory protections for whistleblowers who retain documents relevant to legal violations—particularly under laws like the Illinois Whistleblower Act or the False Claims Act—these protections are:
- Narrow in scope: They often require reporting to government agencies, not just gathering evidence
- Fact-specific: Whether you’re protected depends heavily on exactly what you downloaded, when, why, and how
- State-dependent: Protections vary dramatically by jurisdiction
- Easily forfeited: Courts look at whether your document retention was “reasonably related” to your claims
Even worse, many employees think Title VII’s anti-retaliation provisions or state discrimination laws automatically protect their evidence-gathering activities. They don’t. These laws protect you from retaliation for opposing discrimination or participating in investigations—they don’t give you a free pass to violate contractual obligations or company policies.
The AI Trap: Your “Free Legal Advice” Is Now Evidence Against You
I’ve had multiple consultations recently where potential clients uploaded confidential company documents to AI chatbots before contacting an attorney. They thought they were being resourceful, getting preliminary “legal advice” before investing in a lawyer.
Instead, they:
- Waived attorney-client privilege: Communications with AI are not privileged. If the company discovers you used their confidential information this way, they can subpoena those interactions.
- Violated confidentiality agreements: Most employment agreements prohibit disclosing confidential information to third parties. AI companies are third parties. You just breached your contract.
- Created evidence of bad faith: Employers will argue you weren’t gathering evidence for legitimate legal purposes—you were shopping for a case.
- Potentially violated computer fraud laws: Depending on your company’s systems and policies, unauthorized data extraction can implicate state and federal computer fraud statutes.
What the Law SHOULD Be vs. What It IS
Here’s my professional opinion: The law SHOULD strongly protect employees who gather and disclose to legal counsel information relevant to potential discrimination, harassment, retaliation, whistleblowing or other employment law violations. The public interest in exposing illegal workplace conduct should outweigh corporate confidentiality interests in most cases.
Some jurisdictions, like Illinois with its Whistleblower Act and certain federal circuits interpreting False Claims Act protections, have moved in this direction. Courts have recognized that confidentiality agreements cannot be used as swords to silence legitimate whistleblowing. Cases like United States v. Cancer Treatment Centers of America, 350 F. Supp. 2d 765, 773 (N.D. Ill. 2004), for example, clearly protect disclosures of unlawful activity to the government. United States ex rel. Ceas v. Chrysler Group LLC, 191 F. Supp. 3d 885, 888 (N.D. Ill. 2016) also illustrates this principle as it applies to claims under the False Claims Act. But these protections are not universal, not automatic, and not guaranteed!
The reality is that most employers operate under a patchwork of:
- State laws with varying protections
- Contractual restrictions that may or may not be enforceable
- Company policies with criminal penalties for violations
- Judges who may or may not be sympathetic to your evidence-gathering
You cannot assume you’re protected just because you believe you’re exposing wrongdoing.
The Employer’s Retaliation Playbook
Here’s what happens when you’ve violated confidentiality agreements while gathering discrimination evidence:
Phase 1: Discovery
Your employer’s IT department flags unusual data access or email forwarding patterns. This happens more often than you think—companies monitor these activities.
Phase 2: Investigation
Rather than immediately addressing your discrimination complaints, the company launches an “investigation” into your policy violations. This investigation gets documented meticulously.
Phase 3: Discipline or Termination
You get fired—not for complaining about discrimination (which would be illegal retaliation), but for violating confidentiality agreements, data security policies, or acceptable use policies. Now your employer has what is called a “legitimate non-discriminatory (or non-retaliatory) reason for termination.” Your case just became severely impaired or even destroyed.
Phase 4: Litigation Defense
When you sue for discrimination, the company argues:
- You were terminated for legitimate policy violations, not retaliation
- You cannot be trusted because you violated confidentiality
- Your evidence was improperly obtained and should be excluded
- You should face counterclaims for breach of contract or theft of trade secrets
Even if you ultimately win on your discrimination claims, you’ve made your case exponentially harder and more expensive to prove.
The “Fruit of the Poisonous Tree” Problem
In criminal law, there’s a doctrine called “fruit of the poisonous tree”—evidence obtained illegally cannot be used in court. While employment law doesn’t work exactly the same way, courts can and do exclude or limit evidence obtained through improper means.
More importantly, your credibility becomes the central issue rather than your employer’s discrimination. Instead of talking about harassment and discrimination in settlement negotiations or trial, you’re defending your document retention practices. You’ve shifted the narrative from their wrongdoing to yours.
What You Should Do Instead
If you’re experiencing discrimination, harassment, or retaliation at work, here’s the proper sequence of actions:
BEFORE You Download, Forward, or Save Anything:
- Consult an employment attorney immediately: If you are having any issue at work whatsoever, you need a consultation with a skilled employment lawyer. We can review your specific confidentiality agreement and advise you on what evidence-gathering is legally protected.
- Get advice on documentation methods: There are often legal ways to preserve evidence without violating agreements—like keeping contemporaneous personal notes, using company-provided communication tools properly, or making official complaints that trigger preservation obligations.
- Understand your specific restrictions: Your confidentiality agreement, IP assignment, and data security policies are contracts that matter. An attorney can tell you exactly what you can and cannot do.
NEVER Do These Things Without Legal Advice First:
- Forward company emails to personal accounts
- Download files to USB drives or personal devices
- Upload company documents to AI chatbots
- Take photos of confidential documents with your phone
- Share company information on social media or with non-attorneys
- Copy proprietary information, trade secrets, or customer data
What You CAN Typically Do The Following (But Verify With Counsel):
- Keep personal contemporaneous notes of incidents
- Save your own performance reviews if provided to you
- Document publicly available information
- Retain your own communications if company policy permits
- Make internal complaints through proper channels
- Report to government agencies (which may trigger your right to retain evidence)
- Request a copy of your own personnel records
The AI Legal Advice Problem Deserves Special Attention
I cannot stress this enough: AI chatbots are not lawyers, are not confidential, and cannot give you legal advice! Ever !
When you upload company documents to AI tools:
- You’ve transmitted confidential information to a third party
- You’ve created a discoverable record of that transmission
- You’ve potentially violated multiple agreements and laws
- You’ve received advice that may be completely wrong for your jurisdiction
- You’ve waived any privilege that might have protected those communications
The money you “saved” by not consulting an attorney immediately will cost you exponentially more when your employer discovers what you did.
A Real-World Hypothetical
Imagine the following: I consult with a potential client who had uploaded dozens of company documents to an AI chatbot asking if she had a discrimination case. The AI told her she did. Encouraged, she then sent even more documents asking what damages she could recover.
Her employer discovered the uploads through a routine security audit. They terminated her for violating data security policies and confidentiality agreements. Now she faces:
- Loss of her strong discrimination case (overshadowed by her policy violations)
- Potential counterclaims for breach of contract
- Possible computer fraud allegations
- No protection under whistleblower statutes (because uploading to AI doesn’t count as “reporting” to authorities)
Had she called an attorney FIRST, we could have advised her on proper evidence preservation, helped her make appropriate reports to government agencies that WOULD trigger whistleblower protections, and built her case without creating these liability landmines.
“But What If Evidence Disappears?”
This is the most common concern I hear: “If I don’t save evidence now, the company will delete it once they know I’m building a case.”
This is a legitimate concern. Here’s the proper way to handle it:
- Consult an attorney who can send a preservation letter: Once your attorney is involved, we can send formal litigation hold letters requiring the company to preserve evidence. Destroying evidence after receiving such a letter creates massive liability for the employer.
- File charges with government agencies: EEOC, state civil rights commissions, OSHA, and other agencies can compel document preservation and production.
- Use proper documentation methods: Your attorney can advise on evidence-gathering techniques that don’t violate your agreements.
- Rely on discovery: Even if evidence is deleted, forensic recovery and spoliation sanctions exist for this exact reason.
You do not need to become a midnight document thief to protect your case. You need a lawyer who knows how to properly preserve evidence through legal channels.
The Bottom Line: Call an Attorney FIRST
Employment law is complex, state-specific, and full of traps for the unwary. What might seem like common sense—gathering evidence of discrimination—can destroy your case if done improperly.
Before you:
- Download company documents
- Forward emails to personal accounts
- Upload anything to AI
- Share company information with anyone other than your lawyer
- Post about your employer online
CALL AN EMPLOYMENT ATTORNEY.
We can review your confidentiality agreement, assess your situation, advise you on proper evidence preservation, and help you build your case without creating liability problems.
The cost of a consultation is infinitely less than the cost of making an evidence preservation mistake at the start of your case! The cost of violating confidentiality agreements while trying to build your case on your own? It could be everything—your job, your case, and potentially your financial future if you face counterclaims.
What You Should Remember
The famous 19th Century philosopher and noted pessimist Arthur Schopenhauer once said, “If I maintain my silence about my secret it is my prisoner…if I let it slip from my tongue, I am ITS prisoner.” When it comes to downloading your employer’s secrets, it is vital that you make those secrets your prisoner and not the other way around!
Your instinct to document discrimination and preserve evidence is correct. Your method of doing so without legal guidance can be catastrophic.
While the law SHOULD clearly protect employees who gather evidence of workplace violations, it doesn’t yet provide consistent, guaranteed protection. Until it does, you must navigate these issues carefully with expert legal guidance.
Don’t let your employer turn your legitimate discrimination claim into a case about your policy violations. Don’t hand them a retaliation defense on a silver platter. Don’t destroy your credibility by violating confidentiality agreements, even if you think it’s justified.
Document. Preserve. Report. But do it the RIGHT way—with an employment attorney guiding you from the beginning.
If you need to speak with one of our experienced employment attorneys, please contact Carey & Associates, P.C. at info@capclaw.com or 203-255-4150.
