You may have employees who perform well but could do better—and you might have some ideas about how they can do that.
So at evaluation time, you rate them as good or even excellent employees and want to include some specific suggestions in the narrative part of the evaluation. But you also know that some employees are sensitive to criticism. What should you do?
Go ahead and include the constructive criticism. Courts don’t view such comments as adverse employment actions, making it unlikely that you will be found liable.
Recent case: Anthony Palermo, a white man, worked as a passport operations officer. His supervisor was a black woman. Palermo believed (without proof) that his supervisor favored fellow blacks.
When his boss rated him an excellent worker but included specific ideas for improvement on his performance evaluation, he sued. He claimed the supervisor was punishing him for his prior complaints he had made and was biased against him because of his race.
But the supervisor explained that constructive criticism was a routine part of all her evaluations, and was designed to help employees improve. In each case, she used specific examples from the past year to illustrate what the employee should do better.
The court dismissed Palermo’s case, concluding that mere criticism—especially constructive criticism—wasn’t an adverse employment action over which employees can sue. (Palermo v. Clinton, No. 20-C-2050, ND IL, 2011)
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