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Giving better-than-deserved reviews may be legal, but it’s unwise

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in Employment Law,Firing,Human Resources

Six months after Richard Cullom began work as a staffing specialist at a Veterans Affairs (VA) hospital, his supervisor found his work unacceptable and fired him. Cullom, an African-American, filed a discrimination complaint, and the VA settled the matter by reinstating him.

Over the next six years, Cullom continued to perform poorly. The VA provided extra training, but his supervisors still weren't happy with his work. However, instead of firing him, they did the opposite, they inflated his performance ratings and even promoted him, often under orders from higher-level supervisors. The reason: They feared additional discrimination complaints.

It didn't work. Cullom accused the VA of discrimination and retaliation anyway for not promoting him earlier.

Initially, a lower court found that the VA's overrating of Cullom amounted to retaliation because he was denied the proper feedback to achieve the promotion on his own. But an appellate court threw out the ruling, saying Title VII doesn't prohibit rewarding an employee to avoid a discrimination claim. The court said the VA's higher-than-deserved reviews "may have been a poor and even dishonest policy, but it was not unlawful retaliation." (Cullom v. Brown, No. 99-1178, 7th Cir., 2000)

Advice: The court was right in calling the VA's actions "indefensible." The VA should have documented Cullom's rotten performance and then cut him loose. He still would have sued, but the VA would have had proof of his shoddy work to hold up in court.

Accurate evaluations are critical to good equal employment opportunity (EEO) policy, as well as your own business success. Don't be intimidated into giving less-than-accurate evaluations out of fear of EEO complaints. You'll only put off inevitable conflict, undermine your credibility and help build the employee's case.

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