It is important for a company to establish a procedure for conducting employee evaluations that avoids treating individual employees differently, as that may lead to allegations of employment discrimination.
Or, if the person’s employment is terminated, poor evaluations may support their claim of wrongful termination. It is important to remember that it is not only discriminatory treatment in employment that can give rise to claims of wrongful termination.
The classes of employees protected from discrimination by federal law are as follows:
It is important to keep in mind that states also have laws against discrimination in employment, and these state laws may define discrimination more expansively than federal law. In addition, some employers adopt policies against discrimination on the basis of family status, including same-gender marriage. Family status also includes whether a person is a parent or how many children they have.
For example, New York law bans discrimination on the basis of age, race, color, national origin, sex, disability, genetic predisposition, sexual orientation, and marital status. So an employer wants to be informed about the law of the state in which they operate.
There are a few considerations that an employer should take into account when crafting a procedure for employee evaluations. They are as follows:
- Set Standards: The standards for evaluation of all employees in a certain position should be the same. An employer should advise their employees of these standards well before conducting evaluations of them;
- Set Goals: Make goals for the employee that are tailored for each person individually. The best way to do this is to plan a goal with the employee in order to find something that both the employer and employee are motivated to achieve.
- Goals should include a timeframe within which the goal should be achieved, as well as the method that is going to be used to measure progress. An employer wants employees to know exactly how their success or lack of it is going to be determined;
- Use Standards and Goals in Evaluations: In each employee’s evaluation, make sure to state the standards and goals that were set out, and then report what the employee did to accomplish them. Finally, comment on whether the employee was able to maintain these standards and achieve their goals.
An employer should produce a written record of an evaluation that accurately reflects how the evaluation was done and that the employee was not assessed in an arbitrary or discriminatory manner. Rather the employee was evaluated with respect to stated standards and goals that had been clearly communicated to the employee. How and when the standards and goals were communicated should be documented.
What Can an Employer Do to Evaluate Employees Fairly?
There are several things an employer can do to make it abundantly clear that employee evaluations are not arbitrary, but based on a fair and established practice. In order to remain impartial, an employer should do the following:
- Give Details: Do not set out broad standards or goals such as “be more productive.” The employee may not have the slightest clue on how or when they will have accomplished this type of goal. Again, it is best to use quantitative measurements in standards and goals. That means using numbers. If the use of numbers is not possible, then try to be as specific and concrete as possible. It is additionally important to give examples of the employee’s work practices in the evaluation;
- Be Direct with the Employee: If there is a problem with the employee’s work performance, let the employee know in a timely manner so that they have a chance to remedy the problem. If an employer simply fires an employee without having given any previous notice of a problem and the opportunity to fix it, the employer may expose itself to a wrongful termination suit.
Employees often enter performance evaluation hoping to hear that they are going to receive a raise or promotion, however they most likely also appreciate having the opportunity to receive honest feedback about their professional performance. It is in the employer’s interest to document the evaluation and employees should be provided with a copy. In addition to giving them a written record of what they have done well and not so well, it reinforces the standards and goals that apply to their performance and should help them stay focused on giving the employer the desired performance.
Experts recommend conducting evaluations more frequently than once per year. While many employers conduct employee performance evaluations annually, often tying them to a decision about a promotion or a raise, holding them more frequently, e.g. quarterly or monthly, can be beneficial to both employer and employee. Experts note that more frequent reviews can make employees more comfortable with evaluation and accustom them to discussing their job performance and receiving feedback.
In addition, bringing up areas that need improvement as soon as the employer notes them gives employees the opportunity to change their behavior immediately, rather than continuing the same misstep multiple times until the next scheduled formal review.
Of course, considerations other than avoiding lawsuit for wrongful termination or discrimination on the basis of membership in a protected class and other legal concerns are at work in the evaluation process. Employers have more to think about, such as motivating employees to do their best and equipping them to achieve goals that the employer believes are important to the success of their enterprise.
So an employer has to coordinate considerations of their business success with steps they take to ensure that evaluations are fair and do not give rise to legal problems. One way to ensure that evaluations are not different for employees who differ on the basis of membership in a protected class is to compare evaluations for different employees, particularly those who differ because one is a member of a protected class and one is not. The employer can question whether the evaluation has been based on standards and goals and not implicit bias or other factors that should not be considered.
Experts advise that the following factors can increase the prevalence of these biases:
- Implicit bias is more likely to affect employment decisions when a profession or environment is dominated by a single group, e.g., people who all share the same gender or the same race;
- Different treatment on the basis of gender in performance evaluations and rewards are higher when women are underrepresented in executive roles throughout an industry;
- Unconscious bias is more common when evaluations are performed under time pressure or when the people doing the evaluations are tired;
- Vague or ambiguous criteria for judging performance can give space to unconscious bias in evaluations;
- Success that is defined too narrowly, because these criteria are more likely to be based on traits and behaviors that are those of people already in positions of authority;
- Evaluators do not have enough information about the performance of the employees they are evaluating. This leads evaluators to rely on general impressions, and thus, bias;
- Evaluators who hold attitudes about gender roles that are traditional are more likely to evaluate women negatively, especially if a woman is perceived as non-traditional. Men are more likely to hold traditional attitudes about gender roles;
- Evaluators who hold beliefs that justify social inequality, such as a high social dominance orientation or a strong belief in meritocracy, are most likely to evaluate women negatively.
Experts also recommend structuring the evaluation session as an open conversation.
Employees should be given a chance to share their own perceptions of their performance, or to assess themselves. They can be invited to share their thoughts about their greatest strengths, their biggest challenges and where they believe they should improve in the period ahead.
If an employee is quiet and does not seem comfortable speaking up, they can be engaged by asking them questions such as:
- What is the accomplishment from the past review period of which the employee is most proud;
- In what area does the employee think they have made progress since their last review;
- In what areas would the employee say they need the most improvement;
- How can the enterprise support the employee in meeting their goals
Do I Need a Lawyer for my Employee Evaluation Problem?
If you are an employer and are not sure that your evaluation process is the best it can be, you want to consult an experienced wrongful termination lawyer. An experienced employment attorney can help an employer draft employee evaluation policies and procedures that promote the success of your enterprise and your employees and help you avoid expensive lawsuits.
If you are an employee and feel that your evaluation was far from fair and may have reflected bias, you too should consult an experienced employment lawyer. Your lawyer can discuss your evaluation and help you spot evidence of an evaluation that is not fair and free of bias.
Or, if you feel you were wrongfully terminated because of an unfairly negative evaluation, an employment lawyer can also advise you as to the best way to proceed.