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Reviews ran behind schedule? That’s not enough to justify a lawsuit

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in Discrimination and Harassment,Human Resources

Some employees seem to think they are owed a workplace that is perfectly fair and equitable all the time. Sadly, perfection isn’t possible.

Of course, employers aren’t allowed to discriminate on the basis of an employee’s protected status such as his or her race, sex, age and so on.

But not every slight or unfair decision amounts to discrimination. Something like a delayed annual evaluation simply doesn’t rise to the level of an adverse employment action.

Recent case: Kim, who is black, worked for AmeriHealth. She sued, alleging the company had discriminated against her when it didn’t conduct her annual performance review on time. Her review happened three months later than originally promised.

She also claimed that she didn’t get a bonus and pay increase she said she deserved, while an unidentified man did.

The court tossed out Kim’s lawsuit. It said that something as trivial as a late review doesn’t amount to an adverse employment action.

The court also concluded that a smaller-than-expected bonus or pay increase because of a late review probably isn’t serious enough to merit a lawsuit absent solid evidence that the underlying reason was directly related to protected status. That requires proof that someone outside the employee’s protected class who had a similar performance review did get a bigger bonus or raise. (Solomon v. AmeriHealth, No. 15-4050, ED PA, 2016)

Final note: Courts don’t want to open the litigation floodgates over every single employer decision.

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