Suggesting ways to improve isn’t discrimination

Some employees are hypersensitive to any criticism, even if it is constructive. That won’t turn a weak discrimination lawsuit into a winner. For example, if the employee receives a largely positive performance review that lists some areas in need of improvement, chances are the court will toss the case fast.

Judges understand that even otherwise good employees often need performance-improvement guidance.

Recent case: Virginia, who is black, complained that her white co-­workers all had lighter workloads. HR in­­ves­­­­ti­­gated and decided that some adjustments were in order. Of four white co-workers, two had lighter workloads than Virginia and two did more. HR balanced out the work.

Virginia still wasn’t happy. She began refusing to sign any performance reviews that contained any suggestions for improvement. All her evaluations, however, said she met every basic job requirement, did a good job and got along with others. In the comment section, her supervisor made several suggestions for how she could improve her performance, including better organizing her work.

She sued, alleging that these supposedly poor performance reviews were retaliation for complaining about discrimination in the first place.

The court disagreed. It noted that every performance evaluation Virginia received was positive and showed she met expectations all around. A few suggestions for improvement didn’t change the nature of the evaluation and certainly weren’t grounds for a retaliation lawsuit, the court concluded. (Whitaker v. Nash County, No. 5:11-CV-15, ED NC, 2012)

Final note: The employer did everything right in this case. When the workload complaint showed unbalanced work distribution, it fixed the problem without admitting that race was the reason. Then it proceeded to fairly evaluate Virginia, praising her where it was deserved and encouraging improvement where it was needed.

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