This is a guest post by Sharon Armstrong author of The Essential Performance Review Handbook and president of Sharon Armstrong and Associates, a HR consulting and training firm located in Washington, DC.
As any business professional knows, the legal aspects of performance reviews are critical to understand. A lot of time and money can be spent if the process isn’t handled properly.While an employer can use performance appraisals to defend against a claim, they can also be the focus of an employee complaint, or can be used as evidence in legal disputes tied to other employment decisions.
Below you’ll find a Q&A I recently did with attorney and EEO expert Diane Gold who is president of EEO Management Solutions, a consulting, training, and investigation firm focused on employment litigation prevention located in Falls Church, VA. Here she offers insight into the challenges and legalities of conducting a performance evaluation.
Sharon Armstrong: What are the best ways to avoid legal challenges to performance reviews?
Diane Gold: It’s vital that the performance objectives and the rating are consistent with each other, and that the employee knows what to expect. If, for example, an employee is rated on elements that were not clearly articulated, he or she is more likely to allege that the rating is unfair. If there is no clear basis for the rating, the employee may assume that the reason for the low or negative rating is based on race, religion, sex, national origin, or another illegal categorization.
Sharon Armstrong: Is it true that objective rating elements make it easier to defend a challenged rating?
Diane Gold: That’s right. If an employee is rated on “friendliness,” for instance, what does that really mean? What is friendly to one person might be annoying to another. Subjective criteria such as attitude, personality, or demeanor are inherently difficult to measure.
Examples of more objective evaluation factors include measuring how many sales an employee made, how often a copywriter has met deadlines, or whether a vice president has brought projects in on budget 90% of the time.While it’s not always possible to quantify rating elements, aiming for objectivity makes it easier for the manager to prepare the rating and easier for the employee to understand it. Quantifying those elements may also keep the rating from being challenged.
Sharon Armstrong: Is it also vital that supervisors keep a running file of notes on their employees’ performance?
Diane Gold: Definitely. This ensures a contemporaneous record with specific examples to cite. With carefully kept records, supervisors won’t have to dig into their memories and are more likely to produce an appraisal that fairly reflects the whole appraisal period, not just recent events. Also, if the rating is challenged, they can be confidant knowing that they can back up the review.
Sharon Armstrong: Regarding EEO Compliance, does staying out of legal trouble mean rating employees only based on their skills and abilities?
Diane Gold: Absolutely, because federal law prohibits considering an employee’s race, color, age, sex, religion, national origin, pregnancy, or disability in all employment decisions, including performance evaluations. State, county, or city laws, must also be followed.
The most legally damaging comments in an appraisal are those that blatantly indicate that the rater factored in a protected category. The focus must be on performance only. Also, managers must be trained in understanding and complying with employment laws.
Sharon Armstrong: I know from experience that another problem is giving employees higher ratings than they would otherwise receive—simply because a supervisor likes them, has a personal friendship with them, or is attracted to them.
Diane Gold: Right. Ratings that factor in personality conflicts can also trigger legal trouble. How much an employee is liked or disliked does not belong in the appraisal process, and supervisors must keep personal feelings in check to prevent claims of bias down the road.
Sharon Armstrong: What problems can arise when a supervisor gives a higher rating than is warranted by the employee’s actual performance?
Diane Gold: Plaintiffs in employment cases often try to show that they do not deserve undesirable treatment by using positive performance appraisals. An employee questioning a demotion, low compensation or a termination will undoubtedly use prior positive performance ratings to prove that the negative action is unfair and discriminatory.If managers inflate ratings, they can find that their hands are tied later, when they need to let someone go.
In one age discrimination case, a court reasoned that the employer’s defense—that the plaintiff was a poor performer—was not substantiated by written ratings.
Sharon Armstrong: How would an employee prove a case of prohibited discrimination?
Diane Gold: They would initially need to prove three factors:
1. They are part of a protected class.
2. They have suffered an adverse employment action.
3. They have been treated less favorably than someone who is similarly situated who does not belong to their protected class. The employer then has the opportunity to defend their decision. If the employee can show that the employer’s defense isn’t the real reason for it’s action, they can possibly prove a case of discrimination.
Sharon Armstrong: When is a bad appraisal considered an “Adverse Action?”
Diane Gold: A poor appraisal could be considered an adverse actions if it can be tied to a “tangible employment action” such as a change in compensation or benefits.
Sharon Armstrong: What is the most important thing for a supervisor to keep in mind when they are involved in a discrimination charge?
Diane Gold: They must take special care to treat the employee fairly even if the supervisor considers the employee’s claim unjust.
Sharon Armstrong: Thank you so much for all of this useful and important information Diane. I encourage readers to check out your Legal IQ quiz at the end of Chapter 8 of my book.
You can contact Sharon at Sharon@sharonarmstrongandassociates.com
Subscribe for updates
Follow us on Twitter
