6th Circuit clarifies when increased scrutiny may show unlawful retaliation

Federal law (as well as many states’ laws) forbids an employer from retaliating against an employee who engages in protected activity, such as complaining of unlawful discrimination. One way many employees seek to demonstrate retaliation is by showing the employer heightened the scrutiny of their behavior after they lodged a complaint. Courts have recognized that such post-protected activity nit-picking can be evidence of retaliation. A recent case from the U.S. 6th Circuit Court of Appeals (whose rulings apply to all Tennessee employers) provides more guidance on the circumstances in which increased scrutiny may be evidence of retaliation.

Background

The 6th Circuit has a history of finding increased scrutiny may be evidence of retaliation. For instance, in Cantrell v. Nissan North Am., Inc.—a case the court decided in 2005—the employer tolerated the employee’s disruptive behavior for many years, including threats to coworkers, sexually inappropriate remarks, and harassment. Soon after pursuing an Equal Employment Opportunity Commission (EEOC) complaint for disability discrimination, he was fired for having a panic attack while watching a work video.

The court found the increased scrutiny of his behavior after filing an EEOC complaint provided evidence of retaliation. In other words, the fact the employer let slide pre-protected activity behavior that was much more egregious and yet fired him for having a panic attack could convince a reasonable jury the employer suddenly decided to change its tolerance level after he complained to the EEOC.