Don’t worry a somewhat negative performance review will cost you a lawsuit

Here’s one less thing to worry about when preparing performance reviews: Employees can’t use a poor review as an excuse to sue unless they can show it affected their job in some significant way, such as making the employee ineligible for a pro­­motion.

Recent case: Sergio worked at Walmart and hurt his foot. After a week off, he was moved to a greeter position. When he complained about having to stand on his sore foot, he was moved back to his previous job. He then filed an internal complaint alleging disability discrimination and harassment.

Shortly after the complaint, he received a performance review that suggested he needed to improve in one area, but which generally praised his work.

He quit and sued, alleging discrimination and retaliation based on the poor review.

He didn’t get far. The court concluded the review wasn’t an adverse employment action and therefore could not be the basis for a lawsuit. The court noted that the review was largely positive and that it had no effect on his job duties, pay or benefits. (Ramirez-Rodriguez v. Wal-Mart Stores, No. 5:12-CV-585, ED NC, 2013)

Performance Review D

Final note: Generally, courts take a hands-off approach to performance reviews. Judges don’t want to second-guess employers and take over managing the workplace.

If a review doesn’t block access to raises or promotions and doesn’t diminish pay or benefits, judges don’t want to be involved. The court system isn’t a giant federal HR department.