Your Annual Performance Evaluation: Some Legal Considerations

Last updated February 8th, 2019

When it comes to be that time of year again — the dreaded annual performance review — are you ready? Obviously, performance evaluations play a big role in your continued employment and advancement within your company. Beyond this, performance evaluations can play an important contributing role as evidence in employment lawsuits.

That being said, here are a few legal considerations with respect to your annual performance review.

Is a performance evaluation discrimination unlawful?

No one likes an unsatisfactory performance review, especially one that you believe to be motivated by unlawful discrimination and/or retaliation. However, a negative performance review, by itself, is not enough to support a claim under either New Jersey’s anti-discrimination or whistleblower laws.

Instead, courts require claimants to show an adverse employment action resulting from their employer’s discriminatory and/or retaliatory conduct. An adverse employment action is a change that negatively impacts the terms and conditions of your employment. Examples include a reduction in hours, a salary cut, a demotion, and, of course, termination. Simply being issued a sub-par evaluation alone — even one that results in you being placed on a Performance Improvement Plan (or “PIP”) — does not cut it.

An unreported New Jersey federal court decision, Mickens v. Lowe’s Companies, 2009 WL 4911952 (D.N.J. 2009), illustrates this point. In Mickens, an employee sued his company under the New Jersey Law Against Discrimination (the “LAD”) for alleged disability discrimination. In asserting his claim, the plaintiff argued that a negative performance evaluation he received was an “adverse employment action.” The court soundly rejected this argument, citing a long string of cases holding that negative evaluations, as well as written or verbal warnings that do not result in discipline, do not qualify as adverse actions.

How does a negative annual review help my employment claim?

Assuming you can prove some kind of adverse employment action, a negative performance review can help support the inference that you were discriminated/retaliated against, and that your employer’s stated reason for its adverse action is a sham.

Negative performance reviews are especially helpful in showing discrimination/retaliation when:

(1) They occur suddenly and directly following an employee’s protected conduct, or the revelation of an employee’s protected status.

The ideal scenario is when an employee has an established record of satisfactory or superior performance reviews, then suddenly and out of the blue receives a negative review right after engaging in protected activity. For instance, you might receive the first bad review of your career soon after you:

• Complain that you and the other women in your department are being passed over for promotion by less-qualified males;
• Reveal your sexual orientation to your workplace;
• Announce your pregnancy to your workplace;
• File for a medically necessary leave under the Family and Medical Leave Act (FMLA); or
• Send an email to your supervisor protesting your company’s lack of compliance with federal safety regulations.

When a negative review occurs on the heels of such conduct, it establishes a strong causal and temporal link between that conduct and the complained-of employment action.

(2) They can be directly attributable to an employee’s protected status or conduct.

Sometimes the negative ratings and comments in a performance review are veiled references to an employee’s protected status/conduct, and thereby expose the employer’s bias towards that status/conduct.

For instance, in another unreported decision, Rosenfeld v. Canon Business Solutions, 2011 WL 4527959 (D.N.J. 2011), an employee alleged, among other claims, that his company retaliated against him for taking FMLA leave related to his insomnia. While the company sought to dispose of this claim in a pre-trial motion, the court held that a factual dispute existed over whether the employee was indeed retaliated against, requiring the claim to proceed to a jury trial. Key to the court’s ruling was the fact that the employee’s supervisor had given him a negative performance rating for “absenteeism,” which the court reasoned a jury could interpret to refer to the employee’s FMLA leave.

If I disagree with my performance evaluation, do I have to sign it?

Our offices are commonly asked by employees whether their signature on an evaluation is conclusive proof that they agree with it. The answer is that your signature on your evaluation only serves as proof that you received and reviewed it. However, if you disagree with your evaluation and want to make that clear (whether for potential legal action or otherwise), simply add the following to your signature line: “as to receipt only.”

If you suspect that your negative evaluation is motivated by discrimination/retaliation, and that an adverse action up to and including termination is imminent, contact our offices today for a free consultation on your legal options.