Negative Performance Reviews: Legitimate Teaching Tools or Cover-Ups for Unlawful Actions or Intentions?

Negative performance reviews can either be legitimate teaching tools or they can be mere documents to support what a manager already plans to do.  In the plaintiff’s employment law world, we call the latter, “papering the file.”  And, oftentimes, managers unfairly paper an employee’s file when planning to take unlawful action.  So how can you tell the difference?

A legitimate negative performance review provides concrete examples of ways in which an employee’s performance falls short of unambiguous expectations.  These reviews are constructive in nature, specifically defining for the employee what the expectations are, showing the employee measurable areas where there are performance issues, and providing concrete guidance in terms of what the employee can do to improve in those areas.  In sum, the review itself and the manager’s conduct in issuing the review are tailored toward the goal of correcting performance failings that exist – not simply reprimanding the employee for no reason.

However, an illegitimate negative performance review usually takes on much different characteristics not only in terms of the nature of the review itself, but also in terms of the circumstances surrounding the review.  From the employee’s perspective, it may feel as though the negative nature of the review was completely unexpected.  The employee may disagree with many of the performance criticisms, not understanding or knowing from where those criticisms came or what expectations those criticisms are being evaluated against.  To the employee, the review does not appear to be geared toward correcting the alleged performance failings and does not give the employee clear methods to improve: it simply emphasizes and documents criticisms.

Illegitimate negative performance reviews of this nature are often veils for unlawful actions or intentions by managers.  There are distinct signs to help the employee decipher whether a negative review is legitimately aimed at correcting real performance problems or is really just a cover-up for unlawful motivations:

Timing:

First, if an employee receives an unjustifiably harsh or negative review that does not adequately encapsulate his or her performance, it is important to determine whether anything of note occurred immediately before the review or during the review period.  If, for instance, an employee took a medical or FMLA leave before the review, disclosed a disabling condition, requested a workplace accommodation, or engaged in other protected conduct such as making a complaint of discrimination, the review may be motivated by unlawful discriminatory or retaliatory animus.  A review that is issued out-of-cycle, in other words at a time of year that is atypical from the company’s standard practice or inconsistent with when other employees are reviewed, is also a red-flag for potentially unlawful conduct.

Manner:

Next, if a manager does not give the employee advanced notice to prepare for a review or conducts the review in an otherwise haphazard fashion, this may also be cause for concern.  Reviews are meant to be legitimate evaluations of an employee’s performance.  If the review process is not conducted with transparency and an employee is not given sufficient time to prepare so that he or she can meaningfully address or respond to any alleged performance critiques, such a situation raises red flags as to what the actual motivation behind the review is, and the inquiry may become whether that motivation is of an illegitimate discriminatory or unlawful nature.  Similarly, if an employer’s customary review processes are skirted, ignored or altered in issuing a negative review, the employee should consider whether there is any justification for this change in practice.

Content:

If a review focuses on ill-defined vague or subjective criticisms of the employee rather than measurable performance objectives, this can indicate potential issues that may escalate into future adverse actions against the employee.  Reviews of this nature may focus on what appear to be personality-based failings, pointing out how an employee falls short in his or her demeanor, interactions with supervisors or coworkers, or communication style.  While these types of critiques can be valid at times, they can also be veiled ways of expressing a manager’s simple dislike of an employee.  Dislike can arise from a multitude of sources, including a clash of personality styles (which is not necessarily illegal), but it can also come from unlawful discriminatory or retaliatory animus.  Many times, the key to knowing if the dislike may be unlawful is assessing whether the employee belongs to a legally protected group (such as based on age, gender, race, religion, national origin, disability etc.) and seeing whether that employee’s manager holds the employee’s non-legally-protected counterparts to the same standards, expectations, or subjective criticisms.  When faced with these vague or subjective criticisms, an employee should consider asking for concrete examples of his or her failings.  An employer should be able to articulate examples of even subjectively poor performance.

History:

Finally, if an employee receives a review that differs starkly in terms of the rating or types of comments that employee has received in the past, but has not done anything to warrant the adverse change, this can be a major caution that something is amiss.  At times, managers may attempt to justify a decrease in performance rating by holding the employee to much higher performance standards than in previous years.  However, if these higher standards do not align with the employee’s previously defined roles and responsibilities or work environment, the review may falsely reflect a deterioration in performance even though none exists.  Employees who face unrealistic performance expectations in this type of review scenario will often attempt to address the situation by doing their best to meet the expectations, not questioning the sudden change, even if the expectations are nearly impossible for anyone in their position to achieve.  And, while that can be a good course of action in the short-term, if the manager’s motives in issuing such a review are illegitimate or potentially unlawful, the employee may find this approach unsustainable and ineffective as no matter what they attempt to do, it is never quite good enough for the manager.

In cases such as these where a review appears illegitimate or may reveal potential discriminatory, retaliatory, or other unlawful motivations, it is beneficial to consult an attorney to assess the potential for legal claims and determine possible remedies.  Those remedies may include attempting to have the review corrected or removed from the employee’s personnel file such that it does not negatively affect performance-based compensation-incentives, roles and responsibilities, opportunities for advancement, or other employment-related decisions that may have a negative monetary or environmental impact on the employee.  Remedies may also include submitting an internal complaint of discrimination.  If left unaddressed, an illegitimately negative review or one that holds the employee to unrealistic or disparate expectations can often formulate the foundation for a manager to levy further unwanted performance reprimands against the employee, including Performance Improvement Plans, Corrective Actions, disciplinary warnings, or even termination.

If you believe that you have received a negative review that is illegitimate, unwarranted, or possibly unlawful, please consult an attorney to assess any claims and your best options moving forward.