What is Considered an Unfair Performance Review
While there is no statutory definition of what constitutes an unfair performance review, certain characteristics may cause it to be unfair or to be perceived as such by employees. For example, performance reviews that are blatantly discriminatory, such as an inherent bias against one or more protected categories of employees (i.e. religious discrimination), may not be fairly actionable, although the presence of an identifiable discriminatory intent is, at a minimum, strong evidence of unlawful discrimination. In other words, if the employer’s bias against a protected group influences the employment action and is causally related to any adverse employment decisions, the employee may have a claim for disparate treatment under Title VII if the performance review adversely influenced the employment decision .
Employers should also keep in mind that performance reviews are often inclusive of unhealthy workplace behavior, including bullying, which is not a protected class and does not fall under any federal anti-discrimination or anti-harassment provision, but may still lead to liability. Bullying refers to repeated, health-harming mistreatment of one or more persons by one or more perpetrators. Types of bullying include verbal abuse, offensive conduct/behaviors which are threatening, humiliating, or intimidating, and work interference — sabotage — which prevents work from getting done. Although there are no specific anti-bullying laws, many states have enacted anti-bullying laws, which are often similar to yet different than the state-based anti-discrimination laws. Such state laws can be very effective in protecting employees against retaliation for reporting or complaining about workplace bullying. This is especially valuable when federal or state employment laws do not provide the necessary protection for an employee who claims to experience bullying behavior.
Legal Protections Against Unfair Performance Reviews
Although a performance review is a necessary part of managing a business, that does not mean that the review must be completely free from discrimination. If you are being treated differently than others because of your age, race, religion, sex, disability, or another protected category, then there are laws that will protect you.
Federal Laws
Title VII of the Civil Rights Act of 1964: This federal law prohibits discrimination based on sex, gender identity, sexual orientation, pregnancy status, race, ethnicity, national origin, and religion. This means that if you have been discriminated against because of one of these factors you may have a claim against your employer.
The Age Discrimination in Employment Act (ADEA): The ADEA protects employees and job applicants over the age of 40 from employment discrimination against older workers. If you are over the age of 40, the ADEA protects you from workplace discrimination.
The Americans with Disabilities Act (ADA): The ADA protects those with physical or mental disabilities. This means that if you have a mental or physical disability and have faced discrimination in the workplace, you may be protected this law.
Executive Order 11246: This ensures fair employment because of race, color, religion, sex, sexual orientation, gender identity, and national origin. This applies to employees and applications who work for companies that enter into federal contracts.
State Laws
All state laws protect employees and applicants from workplace discrimination. If you are a victim of discrimination in the workplace, it is important to realize that there are laws and regulations that protect you.
What to do if you Receive an Unfair Performance Review
No matter how unjust a review may be, "keep calm and carry on" is often the best policy. However, there are steps you can take to protect yourself. If you know a 3rd party is aware you will be receiving a bad review, you may want to ask them not to share it with your employer for now.
In most cases, you do not need to respond to a negative review. On the other hand, do not ignore it. Ask for a copy to keep in your records. Make a record of any responses you may have made, or request to review the documentation kept in your file.
You will want to ask for a copy of your personnel file as soon as possible, especially if your review is based on information in your file that you were not aware of. Be aware that they may refuse you this information. If that happens, you must ask them again, and continue to document your requests in case you need to file a complaint.
Avoid immediate discussion with anyone who may be involved in the completion of your review. You may believe you are able to dismiss any concerns about your review, but if your boss objects, you may make the situation worse. This can also confuse the person trying to help. Tell them you will come back to it later.
How Employers Can Prevent Unfair Performance Reviews
Employers can avoid unfair performance reviews by adopting best practices including making sure that they followed consistent criteria for every employee and provided information on what they were looking for. The review period needs to have been made with how it was going to be used in advance instead of a month or two and that the results were kept secret. Employers need to use full disclosure and make sure that their workers being reviewed understood what the purpose of the review was and why it was done. If there are any exceptions made, then they need to be documented .
By establishing and communicating specific standards of performance, and ensuring that reviewers have been properly trained to apply these standards consistently, employers can decrease the risk of claims that an employee was treated differently from a similarly situated worker of another demographic group. The more that standards can be applied objectively to every employee based on their actual work product, the better. Antonoff v. Stewart Cent. Bank, Judge Barbara Crabb 07-0001 (W.D. Wis., 2008). Without any discrimination, an employer should have no issue with having a level playing field when it comes to performance.
How an Employment Lawyer Can Assist in Disputing an Unfair Performance Review
The role of an employment lawyer in dispute over unfair performance reviews can be to give direction from the very start. Does the employee have a good legal basis to dispute the review by talking to his or her employer or by doing the process of filing a complaint with an Equal Employment Opportunity Commission and/or state commission?
Even if the employee has a lawsuit for unfair performance review, do they want to go through the litigation process? If the employee does want to go through litigation, the employment lawyer can then assess the winnability of the case by conducting an analysis of the employee’s claims. That analysis can also include bringing the unfair performance review to the attention of the human resources manager as well as the direct supervisor of the employee. The supervisor is often times the person that wrote the review and can be the judge whether a change in the review and rating should be made. Whether the review should be altered and whether a new review should be implemented can be very much a decision for management to make and sometimes not for an employment lawyer. The employment lawyer can help assist in that process by pointing out the legal issues and perhaps showing an example of another similar person receiving a much higher review than the plaintiff, or employee. But, the manager may not care. The manager may say that the review is stale and let it go, or he or she may want to set a meeting as soon as possible to rectify the situation with the plaintiff employee.
Case Studies: Triumphs and Struggles
A common case of an employee who was successful in challenging his or her performance review is when the employee is able to prove his or her superiors’ subjective bias in a "corrective action" proceeding. Generally, employees have a more favorable outcome in arguing against a negative performance review in these employee discipline grievance proceedings than they do in court. A recent federal court decision proves the point. In Thompson v. Baldwin County Board of School Commissioners, 115 Empl. Prac. Dec. P 44,413 (S.D. Ala., Aug. 18, 2015), the plaintiff, a high school football coach, was also the physical education teacher at the high school. He received an "outstanding" overall performance rating for one of the semesters in the school year. For the other semester, however, his principal made an "unsatisfactory" overall performance evaluation rating for the coach due to his use of an outdated and unsafe weight room. Although the coach vigorously disputed the "unsatisfactory" rating and "corrected" the "unprofessional" statement in the evaluation, he was unsuccessful in doing so. The court, however, examined the record of the evaluation proceedings de novo. Citing Burdine and McDonnell Douglas as described above, the Court found that the decision makers’ reasons for the evaluation were "pretextual" for "illegitimate discriminatory motives." The Court struck the burden-shifting framework and went to a typical public employee First Amendment retaliation claim analysis. The Court found that since the coach coached and taught physical education which involved "physical exertion and physical fitness," his job performance would be a matter of public concern. Further, the coach argued that the "improper" equipment in the weight room violated safety standards which were "imposed to benefit students’ health." The Court stated the First Amendment implicated "public-employee speech matters of public concern . " The Court further held that the coach’s speech addressed a matter of public concern: "the lack of properly maintained equipment in the weight room poses health-related risks to participating students," which "is a public policy concern." The Court also found "that [the coach] ‘suffered an adverse employment action when he was rehired on a temporary-only basis and when he was not reassigned to a desired coaching position." The Court went on to find that the coach’s speech was protected as "the causal connection was established by the close temporal proximity between his protected speech of protesting working conditions and the adverse actions that it precipitated." Accordingly, the Court denied the defendants’ motion for summary judgment. Additionally, there are examples of employees being successful in court challenging their negative performance review in the context of other legal claims. In Ferrante v. American Lung Association of New England, 330 F.3d 523 (2nd Cir. 2003), as cited in Ciric v. Coast Dental Services, Inc., 2009 U.S. Dist. LEXIS 27813 (E.D. Pa., Mar. 31, 2009), the Second Circuit "reversed the dismissal of plaintiff’s claim for intentional infliction of emotional distress based on allegations that plaintiff’s supervisor subjected her to performance reviews and criticism that ‘[f]requently" and ‘"systematically" took the form of ‘personal attacks’ that were ‘demeaning,’ ’embarrassing,’ ‘cruel,’ ‘violent,’ and ‘humiliating.’" In Ciric v. Coast Dental Services, Inc., 2009 U.S. Dist. LEXIS 27813, 25-26 (E.D. Pa. Mar. 31, 2009), the Court described the Ciric decision as "support[ing] the proposition that repeated, excessive criticism of an employee’s ability to do his or her job, when done in a malicious or insulting manner and motivated by discriminatory intent, may be sufficient to state a claim of intentional infliction of emotional distress."
