Issue: Retaliation occurs when an employer "takes an adverse action against a person because he or she is engaged in a protected activity."
Risk: Even seemingly positive actions, such as upbeat job reviews, can be deemed adverse actions if they're a downgrade.
Action: Avoid vague generalities (such as "bad attitude") in job reviews. Use tangible, business-based reasoning for all actions.
Giving someone an "excellent" performance rating may seem like a nondiscriminatory act. But, as a new court case shows, high praise can still be deemed retaliation if the review is worse than a previous one and it hurts the employee's ability to earn a bonus or promotion.
Case in point: Government employee Kirk Webster filed a series of race-discrimination complaints that were settled. When he was moved to another position, Webster earned an "excellent" job rating, plus a pay hike. Still, he filed a retaliation lawsuit.
Why? His rating wasn't high enough to also earn a bonus that year. The rating, he alleged, was retaliation for his earlier race-bias complaints. A federal appeals court sent the case to trial, saying he should have a chance to prove that the excellent rating was retaliation. (Webster v. Rumsfeld, No. 04-1739, 4th Cir., 2005)
Bottom line: Always document evaluations and decisions on bonuses and promotions with tangible job-performance data. Avoid vague generalities (such as "excellent employee," "hard worker" or "bad attitude") in either positive or negative comments.
Instead, use measurements such as sales numbers, work quality, productivity and other valid business reasons for all decisions.
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