Are Workers Protected From Heightened Scrutiny After Complaining About Discrimination?

Having represented retaliation victims for more than two decades, our employee rights lawyers in Citrus County, Florida know that employees who lodge discrimination complaints are often targeted for retaliation. One of the most prevalent employer retaliatory tactics is subjecting employees who complain about workplace discrimination to heightened scrutiny or excessive supervision. When utilizing this favored retaliatory tactic, employers are looking for some purported problem with an employee’s work performance or workplace behavior. Once found, if not entirely manufactured, employers seize upon the purported problem to justify subjecting the employee to a retaliatory action. In other words, employers use heightened scrutiny or excessive supervision to find some pretextual basis for punishing employees for complaining about workplace discrimination.

In most retaliation cases, the employer’s retaliatory action inflicts direct economic harm against the employee. In some retaliation cases, however, the employer’s retaliatory action does not inflict direct economic harm against the employee. By way of example, unless it culminates in a retaliatory action that inflicts direct economic harm against the employee, heighted scrutiny or excessive supervision generally does not involve economic harm to an employee. When an employer’s heightened scrutiny or excessive supervision does not involve economic harm to an employee, the question is whether the employer’s heightened scrutiny or excessive supervision constitutes, standing alone, a form of unlawful retaliation in violation of employment discrimination law. In other words, when an employer’s heightened scrutiny or excessive supervision is the only retaliatory action, does the retaliatory heighted scrutiny or excessive supervision, by itself, violate employment discrimination law?

In this article, our employee rights lawyers in Citrus County, Florida explain how the decision in Stanley v. Mount Sinai Health System, 2023 WL 8355393 (S.D. N.Y. Dec. 1, 2023) demonstrates that subjecting an employee to heightened scrutiny or excessive supervision in retaliation for complaining about workplace discrimination is, standing alone, a form of unlawful retaliation prohibited by employment discrimination law.

Retaliatory Adverse Employment Action

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from discriminating against employees on the basis of race, color, national origin, gender, and religion. In order to facilitate the eradication of workplace discrimination and protect employees who complain about workplace discrimination, Title VII contains an anti-retaliation provision. As explained by the U.S. Supreme Court in Crawford v. Metropolitan Gov. of Nashville & Davidson County, 555 U.S. 217 (2009), “fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.” Under Title VII’s anti-retaliation provision, employers are forbidden from retaliating against employees because they have complained about perceived discrimination on the basis of race, color, national origin, gender, or religion. Title VII protects employees from discrimination when they complain about perceived discrimination towards themselves or towards other employees.

Title VII does not protect employees from all retaliatory actions. Rather, Title VII only protects employees from a retaliatory action that constitutes an “adverse employment action.” To establish a Title VII’s retaliation claim, therefore, an employee must show that the employer’s retaliatory action constitutes an adverse employment action. For purposes of Title VII’s anti-retaliation provision, an adverse employment action generally involves economic harm to an employee. Retaliatory actions that involve economic harm to an employee include demotion, failure to promote, reduction in pay or hours, suspension without pay, and termination.

Adverse employment actions for purposes of Title VII’s anti-retaliation provision, however, are not limited to retaliatory actions that economically harm employees. Rather, the U.S. Supreme Court in Burlington N. & Santa Fe R.R. Co. v. White, 548 U.S. 53 (2006) defined an adverse employment action for purposes of Title VII’s anti-retaliation provision as any act that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” In other words, if the employer’s retaliatory action would “dissuade a reasonable worker” from complaining about workplace discrimination or supporting another employee’s complaint about workplace discrimination, then the retaliatory action is an adverse employment action for purposes of Title VII.

Unlawful Retaliation Lawsuit

In Stanley, a woman named Stanley brought a retaliation claim against her employer, Mount Sinai Health System, Inc. (“Mount Sinai”), pursuant to Title VII. Stanley, who is African-American, claims that Mount Sinai violated Title VII by subjecting her to heightened scrutiny because she complained about perceived race discrimination.

Stanley has worked as a staff nurse for Mount Sinai since May 2016. From May 2016 until May 2021, Stanley was supervised by a woman named Guareno, who was the Nurse Manager assigned to the unit where Stanley worked. Stanley claims that, in May 2018, Guareno told her that “she came across as angry, aggressive, and unhappy.” Stanley alleges that Guareno further told her that she “will not go far in the medical profession as a Black woman” if she did not “learn to manage [her] emotions.” In January 2019, after meetings with Guareno, Stanley drafted a complaint for her union representative to deliver to Mount Sinai’s Department of Labor Relations (“Labor Relations”). Stanley complained about the alleged comments Guareno made about her race, including that she came across as “an angry Black woman” who “can’t control” her emotions.

Stanley contends that, in December 2019, Guareno again accused her of being “aggressive and unhappy” and that “she came across as an angry Black woman.” Stanley also contends that Guareno reiterated that she would have to “change her behavior if she expected to achieve success in the medical profession” and further warned her that, “as a Black woman,” she might be perceived differently from someone who is white. In late May 2020, Stanley complained again to Labor Relations that Guareno allegedly called her an “angry Black woman.”

Stanley maintains that Guareno retaliated against her shortly after her second complaint to Labor Relations by “continuously following [her] around the unit, shadowing her and watching her every move in an evident effort to intimidate her or force her into a mistake she could use against her.” Stanley claims that Guareno began to shadow her on “virtually every shift,” even though Guareno’s standard practice was to shadow employees under her supervision once or twice a quarter. In connection with claiming that Guareno “frequently followed her around the unit, watching her interactions with patients and watching her give medication,” Stanley alleges that in late 2020 or early 2021, Guareno accused her of pushing medication too quickly.

In May 2021, Guareno was promoted, and she was no longer Stanley’s manager. Stanley alleges that, despite Guareno’s promotion, she continued to visit Stanley’s unit frequently and to exercise considerable influence over its operation. In November 2021, Stanley transferred to the night shift on another unit.

Heightened Scrutiny Is Unlawful Retaliation

Mount Sinai filed a motion with the trial court seeking dismissal of Stanley’s retaliation claim. In moving for dismissal, Mount Sinai argued that Stanley’s retaliation claim failed as a matter of law because the alleged retaliatory heightened scrutiny did not constitute an adverse employment action under Title VII. In other words, Mount Sinai maintained that even if Stanley was subjected to heightened scrutiny in retaliation for complaining about race discrimination, heightened scrutiny is not a retaliatory action prohibited by Title VII.

In denying Mount Sinai’s motion for dismissal, the trial court determined that “heightened scrutiny can qualify as an adverse employment action.” In applying this principle, the trial court found that a “reasonable jury could find that Guareno’s alleged heightened scrutiny of [Stanely’s] work is the type of behavior that might dissuade a reasonable worker from making or supporting a charge of discrimination.” In support of its finding, the trial court explained that Stanley alleges that, after she complained about race discrimination, “Guareno began to shadow [her] on virtually every shift.” The trial court also pointed out that Stanley claims that Guareno “accused her of pushing a medication too quickly—an incident that occurred while being shadowed by Guareno.” Based on this evidence, the trial court concluded, it was for the jury to decide whether Guareno’s alleged retaliatory heightened security constituted unlawful retaliation in violation of Title VII.

Citrus County Employee Rights Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our employee rights attorneys in Citrus County, Florida have fought for the rights of retaliation victims for more than twenty years. If you have been punished for exercising your employee rights or have questions about your rights under employment discrimination law as a retaliation victim, please contact our office for a free consultation with our employee rights lawyers in Citrus County, Florida. Our employee rights law firm takes employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.