Preventing Discrimination in Performance Reviews

Discrimination in performance review, racial discrimination in workplace

There are many forms of employment discrimination, some more obvious than others. New York businesses are wise to take steps to avoid unfairness, real or perceived, in the workplace. However, one area that many companies may overlook is discrimination in performance reviews.

If your business has been accused of discriminating in its employee evaluations, you’ll need seasoned legal defense. The New York business lawyers of Rosenbaum & Taylor are ready to assist.

What Is Performance Review Discrimination?

Performance review discrimination is any disparate treatment based on a protected employee characteristic. Such characteristics include race, gender, religion, or anything else protected under state or federal anti-discrimination laws.

It’s rare that managers will overtly discriminate against employees during their reviews. However, there are subtle ways in which this may occur. Even if the review was fair, it could be perceived as unfair by the employee. Some examples of this include the following.

A review happens right after the employee engages in a protected activity.

A protected activity is anything that is protected by employment law. Some examples are:

  • An employee telling her employer that she is pregnant
  • An employee announcing his or her sexual orientation to co-workers
  • An employee who complains about unfair treatment at work
  • An employee who files for leave under the Family and Medical Leave Act (FMLA) or a similar law

These and other activities are protected by law. If an employee engages in them and subsequently receives a performance review, he or she may allege discrimination.

Veiled references to protected conduct were made during the review.

Employers and managers will usually not directly mention a protected characteristic or activity and then give the employee negative feedback. This would create an obvious link between the two that would likely be discriminatory. However, reviewers may sometimes disguise the protected behavior.

In one case, for instance, an employee had properly taken FMLA leave. This conduct is protected by federal law. Later, the employee had a performance review, during which he received negative remarks because of his “absenteeism.” The court refused to dismiss the case. It held that a jury could fairly determine that “absenteeism” was a veiled reference to the FMLA leave.

Using vague or undefined standards

Holding every employee to the same objective criteria helps make performance reviews equitable. Employers are therefore encouraged to adopt clearly defined standards that minimize subjectivity. Conversely, vague and undefined standards allow reviewers to make subjective judgments. This opens the door to potential discrimination.

An example of a vague standard is when an employee is evaluated based on his or her attitude. Workplace attitudes can be interpreted in different ways, and not necessarily in a fair way. An employee may be less socially interactive compared to others because of his or her religion or culture. However, using this against the employee by giving negative marks for “attitude” is discriminatory.

Employment Discrimination, Workplace Discrimination

How to Prevent Discrimination in Performance Reviews

Employers must understand that even if a performance review isn’t discriminatory, it may be seen as such. This could trigger a lawsuit that could result in attorney fees and legal damages. Here are some possible ways to prevent discrimination in performance reviews:

  • Use objective employee performance criteria and discard vague or undefined standards.
  • Encourage employee feedback on their reviews by using internal employee complaint procedures.
  • If complaints of discrimination are raised, meet directly with the employee.
  • Ask the employee to specifically identify what he or she believes was discriminatory about the review.
  • Meet with the individual who conducted the review to address the employee’s concerns.
  • Examine the material on which the reviewer relied in assessing the employee.
  • If evidence of discrimination is found, correct the problem and implement policies to prevent future occurrences of it.
  • If no evidence of discrimination is found, notify the employee and explain how the determination was made.
  • If you are unsure whether the review was discriminatory, talk to an experienced New York business law attorney.

Protecting Your Company’s Legal Rights

Our New York business law firm can review your company’s employee standards and performance review processes to identify legally problematic issues. We can also represent you in the event an employee sues your business. You can count on Rosenbaum & Taylor’s comprehensive business law practice to serve your organization. Call us today.

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