Performance Appraisals in a Legal Contents
A performance appraisal itself may become the target of a lawsuit. Indeed, no evaluation system is completely immune to the risk of litigation. Even a well-designed system can subject an employer to various liabilities if it is poorly implemented or applied in an inconsistent manner. If they are well written and consistent, appraisals can support disciplinary or termination decisions. However, if poorly implemented they can support the plaintiff’s position.
As courts continue to carve exceptions out of the once solid ‘at-will’ doctrine, employers are facing escalating requirements for proof of legitimate business reasons for many personnel actions.
The employee performance evaluation has become the cornerstone of the employer’s defense against discrimination and wrongful termination charges and, as a result, has become one of the manager’s most important responsibilities.
Appraisals are Your Greatest Vulnerability When:
1) They are Discriminatory and Inconsistent
An employer may be liable for adverse employment decisions made against employees based on one of many protected characteristics. Today the legal system affords protection to attributes such as age, race, sex, national origin, religion and disability. This cause of action is termed disparate treatment.
Some states also protect sexual orientation and HIV, marital, pregnancy and military status. Performance evaluations become a liability even if they cause an unintentional impact on a protected class. Such action is termed disparate impact.
Vaughn v. Edel (1990): A discharged black female employee, Emma Vaughn, brought a Title VII action against Texaco, Inc. The evidence showed that, to avoid a discrimination suit, Vaughn’s supervisors were told not to confront her about her work. In neither criticizing Vaughn when her work was unsatisfactory nor counseling her how to improve, Texaco treated Vaughn differently than other employees because of her...