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Employment discrimination comes in many forms, some more subtle than others. One example is the use of performance reviews to evaluate the quality of an employee’s work. If you’ve been the subject of a review or you’re an employer who wants to make sure the process is equitable, there are examples of discriminatory practices you should know about. Stanfield Bechtel Law can protect your legal rights and help ensure the workplace is fair for everyone, both the employee or the employer.
Possible indicators of performance review discrimination
Performance review discrimination can be defined as disparate treatment during the review process based on a protected characteristic such as race, gender, or religion. While a negative review itself is not proof of discrimination, some signs indicate unfair treatment, including:
A review that occurs immediately after the employee engages in protected conduct. “Protected conduct” is simply any sort of action taken by the employee that is protected by employment law. Examples may include:
- Informing your employer that you are pregnant
- Making your sexual orientation known to co-workers
- Complaining about unfair treatment, such as being passed over for a promotion based on your gender
- Filing for leave under the Family and Medical Leave Act (FMLA) or a similar law
These and other actions are protected by law. The timing could be suspect if you engage in them and subsequently receive a performance review.
There are veiled (and negative) references to protected conduct during the review. Most employers and managers will refrain from directly mentioning something that is protected by law and then give the employee negative feedback. This would be too obvious a link between the two. However, employers can sometimes disguise the discrimination resulting from the employee engaging in protected behavior.
For example, a recent case dealth with an employee who had properly taken leave under the FMLA. This conduct is protected by law. However, during the employee’s performance review, the employee received negative remarks because of his “absenteeism.” In allowing the case to go forward, the court held that a jury could reasonably determine that this was a reference to the FMLA leave.
The use of vague or undefined standards. When every employee is held to the same objective criteria, performance reviews can be done more equitably. Every employer is encouraged to adopt clearly defined standards that leave little if any room for subjectivity. But where such subjectivity exists, there is a risk that discrimination can creep into the review.
One such example is reviewing an employee based on his or her attitude. Workplace attitudes can be interpreted in different ways, not all of which are fair. An individual may naturally be less socially interactive with others due to their religion or cultural background, but this should hardly count against them during a review. If it does, the underlying reason may be discriminatory.
Addressing Discriminatory Performance Reviews
Employers should be mindful of the above and other ways in which employee evaluations can open the door to unfair treatment. These are some possible ways to address discriminatory reviews:
- Encourage employee feedback on their reviews and make sure workers know about internal complaint procedures
- Where complaints of discrimination are raised, ask the employee to specifically identify what he or she believes is discriminatory
- Meet with the manager or other individual who conducted the review to address the employee’s concerns
- Review the material on which the reviewer relied in making his or her assessment of the employee
- If there is evidence of discrimination, correct the problem and implement measures to prevent it from happening again
- If evidence of discrimination is lacking, inform the employee and explain the steps taken in making this determination
- In the event you are unsure whether the review in question was discriminatory, talk to an experienced employment law attorney
Protecting Your Legal Rights in the Workplace
If you’re an employee who believes a performance review was discriminatory, let us take a look at your circumstances. We can also help if you’re an employer who’s been accused of this. Finally, our firm can help your company adopt policies and procedures that minimize the likelihood of discrimination. Contact Stanfield Bechtel Law today to learn more.