All by itself, a lower evaluation score isn’t retaliation

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in Employment Law,Human Resources,Leaders & Managers,Performance Reviews

Nowadays, many employees who file discrimination complaints follow up later with retaliation claims. There’s good reason for that. While employment lawyers know that the burden of proof for a discrimination case is high, they also know that the bar is much lower for retaliation cases.

Essentially, any employer action that would cause a reasonable employee to think twice about complaining about alleged discrimination can be retaliation.

That doesn’t mean employers have no power to manage the workplace after an employee files a discrimination complaint. The key is to be levelheaded, reasonable and fair, especially at evaluation time. You aren’t required to reward discrimination complaints with inflated evaluations. In fact, simply giving the employee a deserved lower rating is not retaliation, as the following case shows.

Recent case: Lynette Cain filed a discrimination complaint against her employer in 1995. More than five years later, she received a lowered performance evaluation—going from a high “1” score to a lower “2” overall. She filed a retaliation lawsuit, alleging she had been punished for the earlier complaint.

The 11th Circuit Court of Appeals refused to allow her claim to go to trial. It reasoned that a lowered evaluation score, without solid proof that it was tied to less money, lost promotion opportunities or something tangible, was not enough for a lawsuit. (Cain v. Geren, No. 07-12929, 11th Cir., 2008)

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