I Always Feel Like Somebody's Watching Me...
Typically, pretext is proved through evidence that an employer treated a complainant differently from similarly situated employees or that the employer's explanation for an adverse action is not believable. An adverse action is any action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding.
If you have complained/opposed discrimination, etc. in the workplace, you want to begin tracking and documenting your employer’s pretext(s) by exposing how the so-called legitimate evidence is nothing more than a cover story to justify the real reason they are targeting you—discrimination, etc.
One way you can show pretext is to show that your employer subjected your work performance to heightened scrutiny/increased observation after you engaged in protected activity (e.g., by opposing discriminatory practices, participating in a discrimination proceeding, etc.)
I can give you examples of my experience with heightened scrutiny and increased surveillance. After my former employer was found guilty of retaliating against a Black manager, they came after me for providing truthful testimony about what I heard and witnessed being said and done to the Black manager. I was denied a promotion, denied a justified transfer to take on a new career path for which I was working and received training, and I was subjected to heightened scrutiny and increased surveillance. A couple of weeks after my employers were found guilty of retaliation, I suddenly started hearing about everything that was supposedly being “noticed” or I was told about how things “appeared”. For instance:
-- I was told that people were noticing my hours in and out of the office and that everyone was suddenly questioning my hours. But, my employer wouldn’t accuse me of time sheet fraud, missing deadlines, etc., which would result from an employee not being at work or working shortened days;
--I was suddenly told that everyone questioned if I was really doing work, when I took assignments home. It was stated, “We see you taking things home, but even managers wonder if you really do anything, when you get there.”
--I was suddenly told that all of my emails read “defensively,” with no examples provided and no justification for why this wasn’t a complaint in the previous 7 years I was working at the company;
--I was told that I appeared to be looking for another job; and
--I was told that I appeared to be unhappy and didn’t appear to like working in my department, etc.
Everything I did was scrutinized, pulled apart, and most of it was documented as alleged performance deficiencies. Blanket statements were used to criticize me with no supporting documentation, etc.
So, one of my positions--in my defense to an outside investigating organization--was that I had participated in protected activity (assisting a discrimination investigation) and as a result I was subjected to heightened scrutiny, along with threats to my job security, intimidation, etc.
So, always think about exposing pretexts, the supposedly legitimate reasons why your employer targeted you with some employment action (termination, denial of promotion, suspension, demotion, etc.). If you are the victim of false employment actions and your employer needs to cover it up, they will begin watching you and documenting whatever they think they can use against you.
Think about the levels of heightened scrutiny and increased surveillance that you are being subjected to compared to other similarly situated employees (employees in the same job, level, classification, etc.).