Heightened Scrutiny: Employers look for a legitimate reason to hide retaliation.

By Bryan A. Chapman, Esquire

Retaliation occurs when an employee complains about workplace discrimination and is then targeted for harsher treatment by their employer.  Harsher treatment includes, but are not limited to, refusal to hire, demotion, refusal to promote, harassment, negative performance evaluations, reprimands, termination or a change in hours.  The most frequent form of retaliation is disciplinary action or termination.

An employee may complain that retaliation occurred when the employer “papered” their personnel file with write-ups and negative evaluations after they complained about workplace discrimination.  In its defense, the employer may argue that retaliation did not occur because the write-ups and negative evaluations were based on the employee’s poor job performance or misconduct.

Even if the write-ups and negative evaluations were based on the employee’s poor job performance or misconduct, retaliation can still occur if the derogatory documentation was a result of “heightened scrutiny”.  Under heightened scrutiny, the employer observes the employee more closely than it otherwise would while waiting for opportunities to discipline the employee. Hamilton v. General Electric, 556 F.3d 428 (6th Cir. 2009) (We have held that when an “employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,” the employer’s actions constitute “the very definition of pretext.”)

In a case of heightened scrutiny, an employer acts like a spider patiently waiting for unsuspecting prey to become entangled in its web.

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Bryan A. Chapman, Esquire

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