A positive employee performance review can be considered retaliation
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A positive employee performance review can be considered retaliation

Worker claimed he was downgraded in an employee performance review because he complained of bias

An employee performance review that rates an employee as “promotable” can’t be grounds for a retaliation lawsuit, can it? Unfortunately, yes. A federal appeals court recently ruled that way in a case from Tennessee.

What happened?
The employee, an African-American, wanted a promotion to supervisor. But he worked a second job, and the company thought he might not be flexible enough about scheduling. A white person got the job.


The black employee filed an EEOC discrimination charge, and a few weeks later had his annual employee performance review. He was rated “performer,” third rank on a scale of four, which was lower than in previous evaluations. But the evaluation also called him “promotable,” which was the second-best of four “potential” rankings. And he got a 5% raise. Not good enough, he said, and sued for retaliation.

Until recently, he would have had no chance of winning. Federal courts generally held that an employer had to fire, demote, or otherwise directly affect an employee’s work status for retaliation to exist. But with the U.S. Supreme Court’s Burlington Northern decision last year, that all changed.

Now, as the court in the Tennessee case noted, just about anything that might discourage a reasonable employee from filing a discrimination charge can be considered retaliation. And that was the case here. The court refused to throw the retaliation case out.

We haven’t reached the point where you have to give every discrimination complainant a glowing employee performance review out of fear you’ll be seen as retaliating. But this case does underline the importance of being able to back up each personnel decision – even one that doesn’t seem harmful to the employee – by clear, timely documentation.

Cite: Halfacre v. Home Depot U.S.A., No. 05-6619, 6th Cir., 4/3/07.

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