Performance Evaluation Discrimination Laws

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 Are There Laws Governing Performance Evaluations?

A performance evaluation refers to a type of review that occurs when an employer provides feedback to an employee about their work performance. Some employers will only conduct a performance evaluation once per year. In comparison, other employers may hold a performance evaluation once per quarter, and some employers may not even conduct performance evaluations of their employees at all.

Although it is not mandatory for an employer to conduct performance evaluations of their employees, employers who choose to provide feedback to their employees about their work performance will be required to comply with certain laws. For instance, while there is no express law entitled employee performance evaluation laws, there are laws that do apply to the employee performance evaluation process.

These may include:

  • Laws that protect a worker’s privacy from being infringed upon by an employer;
  • Federal and state anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, the Equal Pay Act, and the Americans with Disabilities Act;
  • Laws that would have a disparate impact on employees’ work performance evaluations;
  • Laws that govern breach of contract cases in the event that an employer violates the terms of a worker’s employment contract or a company policy; and/or
  • Any other laws or regulations that protect employees from employment discrimination.

To learn more about the laws governing performance evaluations or if you believe your employer has discriminated against you while evaluating your work performance, it may be in your best interest to speak to a discrimination lawyer who practices law in your area for further legal advice.

What Is a Forced Ranking System?

In general, a forced ranking system refers to a type of management system that many large corporations use to conduct periodic work performance evaluations and then apply the results generated by the system in order to rank each employee based on their work performance. In most instances, a forced ranking system will assess each employee against each other and put them in a sequence that ranks them from best to worst, or vice versa.

For instance, pretend a large tech corporation created an algorithm that automatically generated results based on an employee’s overall work performance. The algorithm could be applied with the click of the button and would provide the employer with a list of all the workers employed by the organization in the form of a list that ranked them from worst to best, or alternatively, from best to worst.

Another method that may be applied in a forced ranking system is to classify employees by percentage. For example, a list from a forced ranking system may show the percentage of workers who demonstrate poor work performance. Companies may use forced ranking systems to determine which workers to fire and which workers to promote.

How Might a Forced Ranking System Affect Me?

Forced ranking systems may affect employees in a number of ways. One of the greatest effects of a forced ranking system is that it encourages competition between workers. The negative side of forcing workers to compete against each other is that it can lead to the creation of a hostile work environment.

Another way in which a forced ranking system may affect an individual worker is that it could potentially get them fired or cause them to lose a promotion if there was a clerical error or a supervisor conducted a work performance review in a negligent manner. Similarly, a forced ranking system may also result in unintentional or deliberate employment discrimination against certain groups of workers.

In addition, a forced ranking system may create a stigma against certain employees who score low or receive a poor work performance evaluation report. This can be especially problematic in companies that require its employees to work together or collaborate with teams from different departments.

Are There Any Protections against Performance Evaluation Discrimination?

As previously discussed, the greatest protection that a worker can receive and will allow them to exercise rights against unfair performance evaluation reports are anti-discrimination laws.

For example, an employer must comply with the provisions of the Family and Medical Leave Act (FMLA) when conducting an employee performance evaluation. This means that an employer cannot give a worker a bad review simply because they were out on maternity leave.

Another anti-discrimination law that may provide protection against performance evaluation discrimination is a federal law known as the Age Discrimination in Employment Act (ADEA). Specifically, under the ADEA, an employer cannot use a performance evaluation to provide negative feedback simply because of a worker’s age. This means that if a worker requires extra training on new technology because they are older, they cannot be faulted for it.

On the other hand, they may be faulted if they do not improve after they receive sufficient training and continue to make mistakes on their work.

Again, one of the greatest protections that a worker may be covered under is Title VII of the Civil Rights Act of 1964 (Title VII). According to the provisions of Title VII, an employer may not discriminate against a worker during the hiring, promoting, or firing process due to a worker’s race, religion, disability status, veteran status, sex, gender, national origin, color, or pregnancy status.

In the event that an employer uses criteria in an employee work performance evaluation assessment that specifically discriminates against certain groups of workers, the employer may be subject to a class action lawsuit for employment discrimination.

Additionally, if an employee believes that they were wrongfully terminated due to an unjust or discriminatory performance evaluation, they may be able to sue their employer for this reason as well.

What Should I Do If I Have Been Subject to Performance Evaluation Discrimination?

If a worker genuinely believes that they received a negative review during their work performance evaluation because of a discrimination law issue, then the first step they should take is to talk to their supervisor or a representative from their company’s human resources department about the issue.

If having a meeting with a human resources representative or a supervisor does not resolve the issue at hand, then a worker may need to file a formal complaint with a government agency.

For instance, each state has a local branch of the Equal Employment Opportunity Commission (EEOC). Under Title VII, a worker may have a right to file a complaint against an employer with the EEOC if they feel they were subject to an employment discrimination matter in the workplace. The EEOC will then open an investigation into the employer to find evidence of discrimination.

If the EEOC finds that an employer was discriminatory in conducting a performance evaluation of a specific worker or a certain group of workers, the agency will issue the appropriate remedies. If the EEOC does not find evidence of the type of discrimination in the workplace that was alleged in a worker’s complaint, then they will send them a letter that will allow the worker to file a private action against their employer in civil court.

Some other legal issues in performance management that might arise include the following:

  • Wrongful termination lawsuits;
  • Lawsuits involving hostile work environment issues; and/or
  • Claims for negligence (e.g., if an employer negligently conducted a performance evaluation that led to the termination of a worker by mistake).

In addition, a company could also suffer damage to its reputation for consistently discriminating against workers or for mistakenly providing negative feedback to workers, which in turn, can cause the company to lose money or go bankrupt.

Should I Hire a Lawyer?

You may want to consider hiring a local discrimination lawyer if you believe you were wrongfully terminated or discriminated against by an employer during an unfair performance review. An experienced discrimination lawyer will be able to advise you of your rights as an employee and can determine whether you have a viable claim that will allow you to file a lawsuit against your employer in court.

Your lawyer can also assist you in gathering evidence, drafting any necessary legal documents, and performing legal research on the issues in your case. In addition, your lawyer can ensure that you follow the proper procedures when submitting a complaint to a particular agency and/or when filing legal documents for your lawsuit in the appropriate court.

Finally, your lawyer can also help you to recover remedies by providing legal representation on your behalf in court or during a settlement conference with your employer.

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