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)
Advice: Don’t be afraid to list problems on an annual . 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 , 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.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- When the lawsuit is frivolous, employee may have to pay employer's attorneys' fees
- Use statistics early to blow shaky lawsuits out of water
- How to prevent employees from abusing PTO leave
- NYC human rights commission recognizes 31 genders