are valuable tools to help put struggling employees back on track. But a low rating also can spur poor performers to consider legal action: Many discrimination suits have been launched on the wings of a appraisal.
Fortunately, employers with solid appraisal systems usually have built-in defenses against such charges. The ability to show a court the complete files on all performance-appraisal discussions and documents makes it easy to prove you rate your employees fairly.
If an employee’s disgruntlement about a review prompts a discrimination complaint followed by a retaliation complaint, you will have the documentation you need to show you weren’t retaliating. Instead, the record should show the evaluations were consistent with the overall declining performance.
Recent case: State employee Jerry Brown, who is black, received a string of bad reviews over the years.
When Brown filed an EEOC complaint, most of his claims eventually were dismissed because he missed the filing deadline. But several race-related claims remained, including his assertion that subsequent performance appraisals were tainted by retaliation for his EEOC complaint.
The court dismissed his lawsuit after the state produced Brown’s performance-appraisal records. The court reasoned that, although Brown’s reviews continued to slide after he filed the EEOC claim, they were consistent with his prior. In other words, this wasn’t a case where prior reviews were average or stellar and later reviews were negative. Instead, it was a case in which a poorly performing employee’s performance continued to decline. (Brown v. Illinois Department of Natural Resources, No. 06-1552, 7th Cir., 2007)
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