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More than low rating required to win discrimination suit

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

Believe it or not, federal courts don’t want to micromanage every aspect of your HR function. When faced with serious claims such as discrimination, courts ask employees to prove they suffered an “adverse employment action”—major damage such as a demotion, a cut in pay or discharge.

They don’t tend to sweat the small stuff, such as lousy performance appraisals. Without more than a “needs improvement” rating to show bias, your annual review process won’t lead to losing a discrimination claim.

Recent case: Shereca Anderson and several other black co-workers sued UPS for race discrimination. Their main complaint was that UPS managers allegedly had given them low performance reviews because they were black.

UPS asked the court to dismiss the case, arguing that a poor performance review alone wasn’t an adverse employment action.

The 11th Circuit Court of Appeals agreed. Before a poor performance review can serve as the basis for a race discrimination lawsuit, that review must be linked directly to something like denial of a lateral transfer, promotion or pay raise.

If the appraisal is one of many factors considered, then it alone can’t be used to file suit. Essentially, any lawsuit relying solely on a low performance appraisal is premature—employees have to wait until something truly adverse happens. (Anderson, et al., v. United Parcel Service, No. 07-10863, 11th Cir., 2007)

Final note: If you are having difficulty with an employee’s performance and want to document those problems, performance reviews are a good opportunity to do so. They won’t lead to a lawsuit, but can help you create a paper trail showing your legitimate concerns and the efforts you took to correct them.

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