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Objective evaluations get lawsuits dismissed

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in Discrimination and Harassment,Human Resources,Leaders & Managers,Performance Reviews

The quality of your performance evaluation process—whether it is objective or subjective—can determine how a discrimination lawsuit turns out. Handle evaluations improperly, and a case can linger for months. Do it the right way, and the case may be dismissed immediately.

It works like this: An employee who claims that discrimination caused his discharge has to persuade the court that there is some evidence that discrimination was at play. He does that by showing (1) he is a member of a protected class, (2) was discharged and (3) was qualified for the job.

Employers can get the case tossed out early (saving time and money) by showing the employee couldn’t do his job. But the trick is this: Courts want objective, not subjective, evidence. Otherwise, courts will send the case to trial.

In the following case, the employee’s performance evaluations all noted that the employee didn’t write well or properly put reports together. But the employer relied on a supervisor’s opinion rather than specific examples.

Recent case: Stephen Folsom, who holds a bachelor’s degree in criminal justice, took a job as a probation officer. His supervisor almost immediately complained that Folsom couldn’t write or prepare reports. The supervisor conducted four evaluations, but he gave no specific examples of Folsom’s poor writing skills.

After the employer discharged Folsom, he sued, alleging race discrimination. His former employer tried to have the case dismissed, to no avail. The court said Folsom had to show he could perform his job, and said the subjective evaluations didn’t undercut his claims since he met the educational requirements for the position. Because the employer’s criticism was subjective, the court let the case go to the next stage, where the employer had to back up its subjective assessment.

Ultimately, the court dismissed the case when Folsom couldn’t prove that discrimination was at the heart of the poor evaluations. But if the employer could have demonstrated objective proof of Folsom’s incompetence, it would have won an earlier dismissal. (Folsom v. Superior Court of New Jersey, No. 06-CV-1651, DC NJ, 2008)

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