Introduction to Discrimination During Performance Reviews

Discrimination During Performance ReviewsConsider the following hypothetical situation: you have been working with your current employer for about one year. You receive a notification from the human resources department that your annual performance review will be conducted soon. You are anxious but not overly worried: You have been receiving average to above-average reviews throughout your first year from your direct supervisors in informal performance reviews, and you believe that you are keeping up with your peers in terms of productivity. What is more, you have made friends at work and have not received any complaints from coworkers.

Your performance review begins and the reviewer (a senior-level manager) goes over those areas of your work duties that are being performed adequately. You are on time for most of your shifts and can generally keep up with production requirements (although, as the reviewer points out, you have turned in several projects late during the past year). You are shocked, however, when the reviewer ends the performance review thusly: “I’m sorry, but you just don’t seem to have the energy and personality that we’re looking for in an employee. We’re going to have to let you go.”

Have You Experienced Discrimination in a Performance Review?

In the above-described hypothetical, have you been discriminated against? It is certainly difficult to tell. If you were an older worker (over the age of 40) and you were told that you do not have the “energy” or stamina they are looking for, such a comment might suggest age discrimination. Being told that your “personality” is not a good fit for the company may be a way for the reviewer to attempt to discriminate against you based on race, ethnicity, or national origin (or other protected classifications). The employer’s and reviewer’s motives are even more suspect because for the past year you have been told you are doing an adequate job. So the question remains: In the hypothetical above, have you been the victim of discrimination?

See the article on an employee who sued her employer for discrimination on a performance review.

Avoiding Discrimination Claims in Performance Reviews

Anti-discrimination laws prohibit employers from discriminating against workers during any part of the employment relationship, from hiring decisions to firing decisions. This includes performance reviews. To protect themselves from potential claims of discrimination, employers should attempt to conduct performance reviews by:

  • Using clear examples of positive or negative behavior. Employers who use vague phrases and terms like “energy” and “output” may be accused of hiding a discriminatory motive. Instead, employers should provide employees with clear examples of behavior that is problematic. For example, the employer in a performance review can point out to the employee that the average output expected of all employees is five units per hour and the employee has consistently only been able to produce two units per hour. Or, the employer can avoid classifying an employee as “low-energy” or “unreliable” by instead pointing out that the worker has reported for his or her shift more than ten minutes late for 50 out of the past 75 shifts.
  • Having clear standards and expectations that are communicated to employees. An employer who uses a numeric or letter-based grading system for performance reviews should communicate its expectations to employees. If the employer expects all employees will score an “A” or “5 out of 5” in each area of review, this needs to be made known to employees at the time of hire. This prevents any confusion or hard feelings when the employee is terminated despite receiving “average” scores.
  • Treating similarly situated employees the same. This goes without saying, but if two employees are in similar situations and one receives a raise after his or her performance review, the employer should be prepared to give the other employee a raise or explain why the second employee is not deserving of a raise. Of course, the reason for denying a raise to the second employee should be nondiscriminatory in nature and should be communicated to the employee at the time of the performance review.

Being specific, having clear standards, and treating similarly-situated employees the same are easily-implemented steps that can save employers from having to defend themselves against discrimination lawsuits later.  Contact an experienced employment lawyer in Phoenix for additional information on discrimination during performance reviews.