Employer Retaliation in the Form of Poor Performance Reviews

Most employees assume that the performance evaluations they receive from their supervisors are somehow regulated by the law. The truth is, for the most part, performance evaluations are within the discretion of employers. This includes not only how the evaluation is conducted, but also aspects such as how often to conduct them, the format to be used, and whether or not an evaluation will be conducted at all. Most importantly, the content of the performance evaluation is not subject to review by the court. Put another way, the fact that you may not agree with your performance evaluation means little in the eyes of the law. The only importance a performance evaluation may have is in providing circumstantial evidence of discrimination or retaliation.

Handling Unfavorable Performance Evaluations

Despite the frustration an employee may feel upon receiving an unfavorable performance evaluation, without evidence of discrimination or retaliation, there is very little that can be done about it. If you are unhappy with your evaluation, one suggestion is to request more specific feedback regarding your performance issues, so that you can do your best to improve in those areas.

Ways Performance Evaluations Can Be Used to Retaliate

It is not uncommon for employers to retaliate against employees through a variety of acts such as suspensions, demotions or termination. While these are obvious means of retaliation, there are other, less obvious acts that can have an equal effect on an employee. In some instances, a poor performance evaluation can be altered or falsified to negatively affect an employee. In other, more subtle situations, employers may interfere with a worker's job performance through intimidation and obstruction, which ultimately results in actual poor performance. For instance, assigning the employee an unreasonably large amount of work or imposing impossible deadlines can cause stress and interfere with job performance. Supervisors may also spread false rumors about an employee in order to tarnish his or her workplace reputation.

Courts Have Recognized Retaliation Tactics

Many courts have recognized these types of retaliatory tactics as a way for employers to exact revenge against employees for various reasons. So, when analyzing retaliation claims, the "totality of the circumstances" is considered. In other words, instead of considering whether individual actions taken by the employer would constitute retaliation, the court will consider all of the actions taken by the employer collectively. The Eleventh Circuit articulated this standard in Wideman v. Wal-Mart Stores, Inc. (11th Cir. 1998).

The Difficulty in Challenging a Poor Performance Evaluation

Even though courts recognize the use of performance evaluations in retaliation, it still remains very difficult to challenge a poor performance evaluation in an employment discrimination case. The difficulty comes in proving that the basis for the poor evaluation is untrue, and instead, a pretext for retaliation. It is rarely enough for an employee to simply disagree with the assessment. In some cases, evidence that all previous performance evaluations were excellent until after the protected activity occurred may be sufficient to show pretext. Ultimately, the success of a claim depends on various factors that should be discussed with your employment law attorney.


Has an employer targeted you for discrimination or retaliation? Wrady & Michel, LLC has significant experience representing workers in employment lawsuits in Birmingham. Contact us today for answers to your questions — call (205) 265-1880 or use our online case evaluation form to learn more!

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