Heightened Scrutiny: Employers ensnare unsuspecting employees.
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.”)
Bryan A. Chapman, Esquire
“Papering” an employee’s personnel file: Dr. Jekyll becomes Mr. Hyde
Employers are advised to document the job performance of their employees. The documentation of job performance is particularly important when an employer is accusing an employee of poor job performance. Write-ups and negative job performance evaluations can justify adverse actions, such as, denial of promotion, demotion, or termination.
However, unjustified write-ups and negative job performance evaluations may be evidence of discrimination and retaliation. A careful examination of the personnel file portrays an employee who goes from being Dr. Jekyll to Mr. Hyde: a good employee suddenly becomes a bad employee. This can raise suspicion and expose an employer to liability.
“Papering” occurs when an employer deliberately packs an employee’s personnel file with unjustified write-ups and negative job performance evaluations in order to justify an adverse action. For instance, an employer can “paper” an employee’s personnel file by the following methods:
- An employer may hold the employee to a higher standard than “similarly situated employees”.
- An employer may scrutinize an employee.
- An employer may singled out the employee for criticism or disciplinary action.
- An employer may create a hostile work environment that interferes with the employee’s ability to perform their job.
- An employer may solicit criticism of the employee from their co-workers and supervisors.
- An employer may incite the employee’s co-workers and supervisors against them.
- An employer may deliberately give the employee false write-ups and negative job performance evaluations.
Employers can use “papering” to cover-up discrimination and retaliation. Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“…he received much lower performance evaluations than he had received before filing his employment discrimination charge… There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports, including two written reprimands.”); Etefia v. East Baltimore Cmty. Corp., 2 F.Supp. 751 (D. Md. 1998) (the court determined that the issue of whether documentation of the employee’s job difficulties was part of a plan to terminate him based on discrimination precluded summary judgment.)
Bryan A. Chapman, Esquire