Employee reviews: Latest target for retaliation lawsuits

by on June 3, 2009 · 0 Comment POSTED IN: HR Info Center

How to manage employee reviews to reduce legal fallout

If you had any doubt that you need to be more careful than ever about employee reviews, now’s the time to leave that doubt behind. As we pointed out in earlier, lots of personnel actions that wouldn’t have been seen as retaliation before, now might be. That’s a result of the watershed Burlington Northern decision from the U.S. Supreme Court.


One area that’s especially vulnerable to retaliation charges now are employee reviews. Used to be, a worker with a discrimination ax to grind had to show the employer did something directly affecting his or her job – termination, suspension, pay cut, etc. Now, just a negative comments on employee reviews may be enough to support a retaliation claim.

A new case from Colorado illustrates the point. An employee felt he’d been unfairly passed over for promotion, so he filed a sex/age/disability discrimination charge. Right after he testified in his case, he handled a delicate personnel situation clumsily, in his supervisor’s view. She said as much in his next review, expressing “serious concern” about his meeting expectations. The employee took this very badly indeed. In fact, he decided to take early retirement. He also sued for retaliation, claiming the supervisor was getting back at him over his bias charge. In court, the employer argued that a few comments in a performance review weren’t adverse employment action. But the court said under Burlington Northern, they were. The court threw the case out anyway, but it was a close call.

What you can do: Employee reviews should be a collaborative process. Elicit the employee’s input about performance problems, and make sure the written document reflects that input. Or reconsider whether you want to do traditional evaluations at all.

Cite: Layman v. Gutierrez, No. 05-cv-01890, D. Colo., 12/6/06.

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