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Excluding employees from meetings, micromanaging, and other facially neutral conduct can show unlawful intent

May 20th, 2014  |  Lorene Park

By Lorene D. Park, J.D.

When it comes to nonverbal interactions, most supervisors know that threatening body language, touching, more-than-minor pranks, or adverse employment actions like termination can support discrimination, hostile work environment (HWE), or other claims under employment laws. But those same supervisors may think it is no big deal to merely watch an employee’s work extra closely, to exclude non-essential personnel from a meeting, or take other seemingly neutral actions. Courts do not always view it that way. Micromanaging could mean an employee needs guidance, but it could also mean a supervisor is looking for reasons to fire someone (perhaps in retaliation for protected activity). And excluding someone from a meeting, particularly if he or she typically attends such meetings, could be viewed as shunning an employee.

We are often told by courts that Title VII is not a general civility code. For this reason, facially neutral conduct may not be enough by itself to show a hostile environment, discrimination, or retaliation. However, nonverbal communication makes its way into employment litigation more than you know and, in the right context, even arguably neutral actions will suggest improper motives. Here are some examples.

The cold shoulder.  An employer should have the discretion to make routine decisions like where to place employee desks and who to include in meetings, right? The answer is “usually.” In several cases employees’ allegations of being excluded from meetings, moved away from coworkers, or otherwise isolated have supported HWE, discrimination, and retaliation claims. In one case, a federal court in Texas refused to dismiss the retaliation claim of an administrative assistant who was moved to a different desk area, left out of meetings in which she was previously included, and ignored by her supervisor after she was named as a witness in another employee’s discrimination suit (Slaughter v College of the Mainland).

Similarly, a federal court in Pennsylvania refused to dismiss the HWE and retaliation claims of a female manager who alleged that after she complained of unequal pay, her supervisor left her out of critical business meetings, canceled one-on-one meetings with her, and started directing questions to her subordinates instead of going directly to her (McSparran v Commonwealth of Pennsylvania). Clearly, timing and other circumstances matter.

Erasing an employee.  Removing an employee’s name from a company website or taking other actions that communicate he or she is no longer at the company, even though there has been no termination, can signal to a court that an employer intended to discharge the employee but was perhaps waiting until the timing would be less suspicious or it had a “legitimate” reason to do so. In such cases, the legitimate reason will likely be called into question, and the employer’s pre-termination actions could suggest pretext. Indeed, in a Texas case, an employer that removed an employee from its website and moved her personal belongings from a shared desk while she was on FMLA leave signaled to the court that it never intended to reinstate her and that her leave was a motivating factor in the decision to fire her upon return (Kendall v Walgreen Co).

Micromanaging. In many cases, employees provide evidence that a supervisor subjected them to greater scrutiny, asserting that the supervisor was looking for mistakes in order to paper the file and justify an adverse employment action that was really taken for an unlawful reason. For example, the Tenth Circuit recently reversed the dismissal of an attorney’s ADEA and Title VII claims based in part on evidence that her supervisor subjected older women to heavier workloads and greater scrutiny as compared to younger male attorneys (Ridgell-Boltz v Colvin).

Difficult assignments. Allegations that an employee was subjected to greater scrutiny for unlawful reasons often go hand in hand with allegations that he or she was given a heavier workload, more difficult assignments, or insufficient time to complete tasks. It is beyond dispute that being given difficult assignments or heavy workloads is just part and parcel of working in certain professions. But in some circumstances, it can appear suspicious. In a California case, evidence that a supervisor made a pilot’s job onerous by requiring him to report to a hangar that involved a 75-mile commute and to take a temporary assignment in Afghanistan — after the supervisor allegedly said he wouldn’t let the “senior guys” retire in place — supported the pilot’s age discrimination claim. The onerous assignments may not have been enough to show an HWE or constructive discharge, but they were evidence of discriminatory intent (Offield v Holder).

Enforcing policies. Discipline may not be facially neutral, but enforcing policies arguably is. Where employers face trouble is when they start enforcing policies that were previously ignored or when they enforce a policy inconsistently between employees. For example, whistleblower claims by a CVS manager survived summary judgment after a Tennessee court noted that he had been a model employee for 13 years but then, after he complained over the pharmacy dispensing out-of-date medications, he was terminated for a single violation of a “zero tolerance” policy that hadn’t even been reduced to writing (Walls v Tennessee CVS Pharmacy, LLC).

Key considerations

While it would be impractical, if not impossible, for employers to scrutinize every neutral action taken or business decision made by supervisors, certain actions deserve at least some special consideration because they appear on a regular basis in employment cases. As the examples above show, these often include “shunning” (usually isolation from coworkers or exclusion from meetings), micromanaging, assigning heavy or difficult workloads, or strictly enforcing policies. As to these actions, context is key when courts are deciding if they are merely the “ordinary tribulations of the workplace” or are something more. In particular, answers to the following questions can be determinative on questions of intent and pretext:

  • Is the exclusion from meetings, change in workspace, scrutiny, or heavy workload something new? If so, courts will look closely at what preceded the change to provide context (and possibly find pretext). For example, did the employee who is being excluded or scrutinized recently complain of what he or she believed was unlawful conduct?
  • Was the employee the only one being subjected to the action? If so, the question becomes why? Considerations may include the employee’s history, recent interactions with the decisionmaker, and any recent protected activities by the employee, such as FMLA leave, complaints of unlawful activity, or requests for accommodation.

Note that even if a court finds inconsistency or suspicious changes, discrimination or other claims will not necessarily succeed in the end. However, such considerations can go a long way in raising triable questions as to intent or pretext.