Remind supervisors: Constructive criticism is expected–not an excuse for employees to sue

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in Discrimination and Harassment,Human Resources,Leaders & Managers,Performance Reviews

Some employees are overly sensitive. They may perceive punishment or discrimination in something the boss considers merely constructive criticism.

Tell supervisors: Don’t shrink from offering criticism, even in the case of a high performer who otherwise has earned a good evaluation.

Recent case: Anthony Palermo, who is white, worked for the Chi­cago Regional Passport Office and filed frequent discrimination claims based on his sex and race. Still, he earned positive reviews and received regular discretionary bonuses. Then Palermo’s supervisor, a black woman, included a paragraph in an otherwise very positive performance evaluation that suggested ways for Palermo to do a better job.

He sued, alleging race and sex discrimination. He claimed the ­comments were inflammatory.

The court saw it differently, noting that Palermo had an overall performance rating of “exceeds expectations” and that he lost nothing as a result of the constructive criticism. It tossed out his case, concluding that employees have to be tolerant of criticism that appears fair and un­­­­related to membership in a protected class. (Palermo v. Clinton, No. 11-1791, 7th Cir., 2011)

Final note: Generally speaking, even a strongly negative performance evaluation isn’t grounds for a discrimination or retaliation lawsuit. That’s especially true if nothing negative happens as a result of the review, such as a demotion or lost pay raise. To constitute retaliation, a performance review would have to dissuade a reasonable employee from complaining in the first place.

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