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Go ahead and detail performance problems—criticism isn’t an adverse employment action

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

Employees can sue for discrimination only if they can show they suffered an “adverse employment action.” In other words, they have to show that their employers somehow did something that affected their jobs—such as a demotion, discharge or pay cut.

Merely criticizing an employee’s performance isn’t enough if it isn’t accompanied by something more substantial.

Otherwise, employees would be able to sue every time their supervisors complained about work performance.

Recent case: Walter Hawkins sued the U.S. Postal Service, contending that he had been discriminated against because of his gender. As proof he had been harmed by the alleged sex discrimination, Hawkins presented several letters he had received from his supervisor criticizing his work.

The court said that wasn’t nearly enough to prove he had suffered an adverse employment action. (Hawkins v. Potter, No. 08-14873, 11th Cir., 2009)

Don’t be afraid to list problems on an annual performance review. Reviews typically aren’t adverse employment actions unless they are used as the basis to deny a pay increase or promotion.

Final note:
Sometimes supervisors get so concerned about possible litigation that they shy away from any criticism. It seems easier to give everybody a good evaluation than risk the hassle of defending a negative one. But when an employee is eventually discharged for poor performance, those evaluations can come back to bite the employer. Then it becomes very hard to argue that the employee wasn’t doing his or her job.

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