How to Know if You Should File a Discrimination Case-Part Two, Performance Review

This employee is out receiving his performance review. Do you think he will be discriminated against?
This employee is out receiving his performance review. Do you think he will be discriminated against?

Discrimination of one type or another takes place every day at work in all types of organizations. The EEOC office is charged with investigating allegations of discrimination against any of its protected groups, which now includes all minorities, all religious groups, women, the elderly and the handicapped.

For almost two decades as the owner of a management consulting firm I and my staff performed contracts from numerous agencies to investigate cases of alleged discrimination by the organization or individual supervisors and, based on our investigation and analysis, gave findings either for or against the employees that had filed the allegation. It is from this experience that I offer the following insights into when to file a case of discrimination for the best possibilities of success.

It should be mentioned at the outset that the number of cases of discrimination filed with the EEOC has grown steadily since I sold my business in the early part of this century. It has grown even now that the country has its first African-American President. Another thing that I must mention is the fact that most of the cases of discrimination filed by employees during the time that we handled investigations were actually lost by the employees. The same is true, so I am informed, today. This should tell you that, either most cases of discrimination are filed because of perceived discrimination, as opposed to real discrimination or that real discrimination is so cleverly hidden these days that it is difficult to prove by the employees making the allegations or by the investigators. My experience tells me that it is a combination of both.

But my experience al so tells me that, while there are many cases of discrimination filed that have little or no hope of being successful, either because true discrimination was not there or because the employee filed the case too hastily, there are many cases that could have been filed by truly victimized employees, but were not filed, either because the employee was too timid or did not realize that he or she could have won the case. The following are the most common kinds of cases of discrimination filed and the ones that have the best prospects of success:

Discrimination in Performance Appraisal

In Part one of this series of Hubs on discrimination I discussed discrimination cases filed because of non-selection and described them as being among the most numerous of all of the cases filed. But almost as many cases are filed because of alleged discrimination in performance appraisal. There are a number of reasons why so many cases are filed in this category:

· In most organizations of any size there will be some kind of uniform performance appraisal program which requires all supervisors to do an appraisal of all of their employees at least once a year and a copy of which is usually placed in the employee’s permanent human resources file.

· Supervisors who manage their employees fairly and effectively will appraise their employees fairly and effectively. Supervisors who manage their employees unfairly and ineffectively will appraise their employees in like fashion. Unfortunately, according to the perceptions of employees, there are far more supervisors in the latter category then in the former.

· Many employees who feel that their appraisal has been unfair, inaccurate or discriminatory may feel that they have no recourse but to file a grievance, a complaint or a case of discrimination because they may feel that their boss is bull-headed, inflexible or just out to get them.

· The results of most appraisals can be important for the employee. On the positive side of the rating spectrum, it could mean the difference between a large raise, a small raise or no raise at all. On the negative side of the spectrum, it could mean discipline and ultimately dismissal or demotion.

A Little Background about Performance Appraisal

All appraisal systems are one of three types or a combination of two or of all types. The following are the three main types of appraisal systems:

1. Traits-based systems: these are really employee appraisal systems, as opposed to performance appraisal systems. They have the supervisor evaluate and rate certain traits, characteristics or qualities of the employee, such as knowledge of the job, attendance, punctuality, commitment to the job or the organization or abilities, such as problem-solving, ingenuity, ability to work independently and others.

Several things to remember about traits-based appraisal systems: one is that they are essentially subjective. The supervisor, in doing the appraisal, is essentially saying, “I think the employee is this way or that way.” Or “I think the employee has this or that to this or that extent.” The supervisor does not have to offer any justification or documentation to support his “thinking” about the employee. Therefore, the employee has no defense against the appraisal because it is not based on anything objective.

The other thing to remember about these types of appraisal systems is that they have little to do with performance. We all know employees who have high intelligence and talents but do not perform as well as other employees with less intelligence and talents.

The third thing to remember about these systems is that they are preferred by many managers because they are easy to use. They are so easy to use that many employees receive the identical ratings year after year. Why? Because the traits and characteristics rated in these systems seldom change in the employee from year to year.

2. Behavior-based systems: These systems evaluate such behaviors as whether the employee comes to work on time or is frequently tardy; whether the employee maintains order and cleanliness in his work station or is sloppy and disorganized; whether the employee is cooperative and courteous to co-workers and the public or not and others.

Evaluating behaviors is frequently more objective than evaluating traits because behaviors can be observed and other employees can be witness to those behaviors. Thus, if a supervisor gives an employee a negative rating in punctuality, and this rating could result in discipline for the employee, the supervisor had better document his rating with the dates and actual number of times the employee reported to work late. In this type of system the supervisor cannot simply express an unchallenged opinion about the employee, as could be the case in a traits-based system.

3. Results-based systems actually evaluate the performance results of the employee, not just how he is or how he behaves. They look at the products of the employee’s efforts and appraise them relative to their quantity and quality. As such, these kinds of systems are more objective because the supervisor’s judgments should be based on objective evidence of the employee’s performance results.

It is understandable that most employees would react negatively if their performance rating is below the level that they were expecting. This can be the case even if the rating is good, but less than the best rating. This would especially be the case in organizations where the level of the rating impacts the size of the employee’s raise or bonus. But employees should disagree with the appraisal results only if they think it is inaccurate or unfair, not because it is less than expected or not high enough for a big raise.

Employees should disagree with the appraisal rating if they have objective evidence-not just subjective opinion-that their performance or work behaviors merited a higher rating then they are being given. This is very difficult with traits-based appraisal systems because the boss is giving a subjective judgment of the employee. But with behavior-based and certainly with results-based systems the employee can produce objective evidence about his behavior or performance to counter the judgments of the boss.

The employee should present his counter arguments and evidence during the performance review session and before signing the appraisal form. If the boss alters or changes his rating of the employee because of the employee’s arguments, then the issue is resolved and the employee can sign the appraisal document. If the supervisor refuses to change the rating and does not provide the employee with convincing justification for the unchanged rating, the employee should sign the appraisal form only if he can write a statement of disagreement to accompany it to the human resource file. But remember, employees disagree with their rating all the time. Some of them say nothing about it and simply suck it up. Others may refuse to sign the appraisal form or sign it with only with a loud and clear statement of disagreement. But simply showing your disagreement with the rating you received is not sufficient justification for filing a case of discrimination in performance appraisal against the boss.

So, what are the common indicators of possible discrimination from the boss doing performance appraisal? The following situations would be considered seriously:

1. The employee receives an overall negative rating which results in discipline or the threat of dismissal. With a negative rating the supervisor has the burden of proof to show that the rating was justified. If the employee is in a protected class and files a discrimination complaint, the supervisor’s burden of proof is quite strong if the rated employee’s performance was apparently no worse than that of other employees who received a higher rating.

2. The employee suddenly receives a lower rating than in previous years and there has been no apparent change in the employee’s behavior or performance. This sometimes happens when the supervisor is attempting to build a case to fire the employee.

3. The employee is given a low rating for one mistake made by the employee and that was never brought to the employee’s attention before the appraisal.

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