"I Spy" All Around The Office
A Black worker has filed a charge alleging that he was racially harassed by his supervisor and co-workers. After learning about the charge, the Black worker’s manager asked two employees to keep the Black worker under surveillance and to report back about his activities. According to the EEOC, the surveillance constitutes an "adverse action" that is likely to deter protected activity (opposing discrimination/harassment), and is unlawful if it was conducted because of the Black worker's protected activity. The statutory retaliation clauses prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a complaining employee or others from engaging in protected activity.
Some of you may have experience with complaining about racially-based mistreatment and then suddenly having coworkers subjecting you to heightened scrutiny at the employer’s request. Suddenly, everyone thinks they are starring in "I Spy."
Some companies will go all out in their recruitment efforts to get corporate spies, particularly in race-related incidences. If the employer is convinced that someone in their employment did violate anti-discrimination, anti-harassment and/or anti-retaliation statutes, the employer may feel compelled to do a James Bond in order to find anything that can provide the company with cover.
All many employers can think of is how they can pull a bait and switch. Instead of focusing on accusations of race-based violations, the company may focus on presenting the complaining worker as a habitually problem employee. It is not uncommon for employers to come up with negative patterns of behavior to use against a complaining employee. So, they may ask coworkers to watch the complaining employee and then they may try to use anything perceived as ammunition against the employee as justification for the treatment of the complaining worker.
A harassed employee may be having problems sleeping, may be physically ill due to the stress of their work situation, may be depressed, etc. This employee may have a day or two of getting into the office late because of the dread they feel about being a target at work. Coworkers who are assigned to watch the employee may report two instances of lateness in a 2 week period, for example. An employer might then use the spies/coworkers as evidence against the complaining worker. They can do this by presenting the complaining employee as someone who’s had a chronic problem with attendance, which is a lie. And, then they can use the spies as corroborating witnesses to their position. During an investigation, even without written documentation citing a problem with lateness, an employer might be deemed credible, when making false accusations about work attendance/punctuality.
Now, accusations of lateness have nothing to do with the allegations from the employee that they've been subjected to race-based mistreatment. However, an employer would rather have that discussion (about fake performance issues on the part of the complaining employee), then deal with the realities of their work environment.
This may sound paranoid, but it’s not. I had a coworker, who couldn’t keep it to herself that she was coming into work early and staying late to spy on her manager at the request of authorities within her department. She was told to rummage through her manager’s desk for anything that could be used against the manager. Previously, this manager was accused of playing the race card and of being a race-baiter, who was only interesting in filing a race-based lawsuit against the company. So, the company wanted this manager’s office nearly ransacked in order to find out what she was up to, if she was informing anyone of her issues in the office, if she had sought outside assistance against the company, etc.
This is just a warning that you should be careful with how you judge your relationships at work. It is fine to trust some people you work with, but you should remember that many people can have their heads turned by promises of promotions, bonuses, etc. Be careful about sharing private information about your complaint and about speaking about your mistreatment with coworkers. You don’t know who is a company spy.
If you do have suspicions that you are being watched by corporate spies, you should document any behavior, words or actions that support this perception. You should be sure to include these suspicions in any report of potentially illegal behavior as adverse actions are illegal.
If you are being watched, it may be part of your employer’s efforts to stop you from engaging in the protected activity of complaining about racially-based mistreatment/violations of civil rights statutes. The use of corporate spies can also be used as a signal to other employees that they will receive the same treatment, should they ever decide to complain.