Tag: evidence

Perilous Pitfalls of Performance Appraisals

December 31, 2018

John Doe is a manager who attempts to be efficient at his job. He understands that personnel management requires a certain diplomacy and finesse. But when he speaks to in-house counsel Jane Smith about a recent EEOC charge filed against their company she is quick to give him several rigid rules to avoid the perilous pitfalls of performance appraisals:

  1. If it’s bad, say so

A performance appraisal is immediately evidence in an employment law case. Thus, whenever, and I mean each and every time that a performance appraisal is being conducted, managers must give their honest assessment. If performance is bad, then managers must make that clear in writing during the appraisal. This writing should state the standard to be attained, should delineate how the employee has failed to meet the requisite standard and lastly, what the employee must do to cure the error.

For instance, during unemployment insurance benefit appeals before the Georgia Department of Labor, where misconduct is alleged, the evaluations if done properly could demonstrate that the employee was aware of the standard to be met, did not meet the standard, was given an opportunity to cure the deficiency and did not do so. 

2. Don’t ignore a litigation hold notice 

A litigation hold is a written directive advising custodians of certain documents and electronically-stored information (“ESI”) to preserve potentially relevant evidence in anticipation of future litigation. Performance appraisals are frequently relevant in wrongful termination cases, especially those cases in which the employer alleges poor performance as the non-discriminatory or non-retaliatory reason for termination of employment. These evaluations are thus frequently the subject of discovery requests. Medical records are another class of usually relevant documents especially in a disability discrimination case. Several types of documents fit the bill depending on the issues raised in the suit.

Once an employer receives notice of a potential legal claim, it does have a duty to preserve the relevant documents, failing to do so could trigger an adverse inference that the documents would have favored the employee. Also, sanctions could be levied against the employer and its legal counsel. 

3. Educate managers to apply objective standards uniformly

Performance appraisals are generally governed by employer policies; there are no federal or state laws determining how or when a performance appraisal must be conducted. However, there are laws implicated by the manner in which employers carry out performance appraisals. For instance, Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, national origin, sex, etc., the Age Discrimination in Employment Act prohibits discrimination on the basis of age, the Americans with Disabilities Act prohibits discrimination on the basis of a real or perceived disability. Each of these laws could be violated if the employer scores the employee negatively because of one or more of these protected categories.

All told, employers need good counsel to create performance appraisal templates, to educate supervisors and managers on its use and to maintain compliance in the event of a dispute.

Protected Status + Adverse Employment Action = Discrimination?

April 14, 2018

Often employees are convinced they are victims of discrimination at the hands of employers, through its management or supervisory staff. Often, certain issues are also clear including the employee’s membership in a protected category: Black, female, Muslim, pregnant, for instance, and the employee having experienced a specific adverse employment decision such as dismissal, failure to promote, under compensation, etc. However, it is rarely ever crystal clear that an employee can link the protected category to the adverse decision. Essentially, the employee must clearly answer the question: why, exactly, is this happening to me?

A recent decision from the Eleventh Circuit Court of Appeals which applies to Georgia, Florida and Alabama gives us a good example of the everyday behaviors at the workplace capable of answering this question: “why”.

In EEOC v Exel, the Court upheld a jury verdict awarding back pay on the finding that an employer’s policy of hiring current employees over external candidates was pretextual for sex discrimination. First, the Court accepted evidence that the policy was not mandatory nor was it uniformly applied. Thus, even though neutral on its face, the policy could be bypasssed and used as a cover for other nefarious hiring decisions. Next, the Court identified such nefarious bias (in this case it was against a woman), in the following actions of the hiring manager:

  • “limited his contact with pretty much all the females in [the] office”

  • asked another to “manage the ladies in the office.”

  • was “standoffish” with female employees

  • treated female employees differently than male employees

  • would come into work in the morning and “go straight to his office..”

  • “…wouldn’t speak to any of [the female employees].”

  • stated several times “that he would never put a woman in a management position”

The Court found this evidence is to be “sufficient to tie “generalized discriminatory behavior to the specific employment decision at issue.””

For employers, this case warns of the use of a preferential policy, even though apparently neutral, could be problematic in its day-to-day application.

For employees who think they are being discriminated against, this case gives an example of the sort of evidence required to be successful at trial.