Remind supervisors: Constructive criticism is expected–not an excuse for employees to sue
Some employees are overly sensitive. They may perceive punishment or discrimination in something the boss considers merely constructive criticism.
Tell supervisors: Don’t shrink from offering criticism, even in the case of a high performer who otherwise has earned a good evaluation.
Recent case: Anthony Palermo, who is white, worked for the Chicago Regional Passport Office and filed frequent discrimination claims based on his sex and race. Still, he earned positive reviews and received regular discretionary bonuses. Then Palermo’s supervisor, a black woman, included a paragraph in an otherwise very positive performance evaluation that suggested ways for Palermo to do a better job.
He sued, alleging race and sex discrimination. He claimed the comments were inflammatory.
The court saw it differently, noting that Palermo had an overall performance rating of “exceeds expectations” and that he lost nothing as a result of the constructive criticism. It tossed out his case, concluding that employees have to be tolerant of criticism that appears fair and unrelated to membership in a protected class. (Palermo v. Clinton, No. 11-1791, 7th Cir., 2011)
Final note: Generally speaking, even a strongly negative performance evaluation isn’t grounds for a discrimination or retaliation lawsuit. That’s especially true if nothing negative happens as a result of the review, such as a demotion or lost pay raise. To constitute retaliation, a performance review would have to dissuade a reasonable employee from complaining in the first place.