When an employee comes under sudden, intensive scrutiny for no good reason, or suspicious reasons not borne out by facts, that’s a pretty good indication that there might be a pre-text (and potential discrimination) happening.
What Does It Mean?
The “sudden, intensive scrutiny” may not by itself be a pre-text, but when it happens, it’s usually evidence that an employer is going to use a pre-text to take an action against an employee.
Most people are quite aware that discrimination is wrong and illegal. So when they’re getting ready to do something that might actually be discriminatory, they might take steps to make it look like it’s a legitimate action.
When an employee without warning finds themselves being subjected to being aggressively monitored, without warning, and in the absence of a good reason – that might be a red-flag that an employer is looking for things to use as a pre-text for a non-legitimate action.
One way to tell if something fishy is going on is to compare one’s experiences with those of others who may have committed the same, or similar “infractions.” If other employees – those who are younger, for instance, or from a non-protected class – are not subjected to the same kind of no-warning, harsh scrutiny, it might be time to start documenting what’s going on.
What Are Some Examples of This?
In the case of Caloia v. Putnam Invs., a woman was subjected to very strict and intensive scrutiny after returning from a medical leave. Ms. Caloia needed to have serious surgery on her neck, and needed to take FMLA leave for her recovery. When she returned to work, her supervisor began taking detailed notes on her activities, making note of trivial issues and using them as grounds for performance issues, penalizing her for activities that other employees were not penalized for, and engaged in other antagonistic behavior. Finally, Ms. Caloia’s supervisor kept telling her not to work overtime, but ensured her workload could only be met by working overtime. 6 months after she came back from medical leave, Ms. Caloia was fired – allegedly for insubordination, in the form of working overtime. The court found that the intense and harsh scrutiny that Ms. Caloia came under was unfair, retaliatory, and discriminatory, and also found that the insubordination claims were in fact a pre-text.
In the case of Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., a female employee complained to the firm about wildly inappropriate behavior by her supervisor. Upon discovering this, the supervisor asked a client to write a negative feedback review about Ms. Verdrager, so he could use it as justification for non-promotion later on. Later, after Ms. Verdrager returned from a maternity leave, he also criticized her work and gave negative evaluations that were inconsistent with those given to other employees, and also at odd’s with some client’s positive remarks. These were all used to support her eventual termination. The court found that Ms. Verdrager was unfairly treated and that the critique and negative reviews were pretexts.
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