If you have reported workplace discrimination, harassment, or another legal violation, you are protected by law from retaliation. Retaliation is when an employer takes an adverse action against an employee for engaging in a legally protected activity. Often, the most obvious form of retaliation is termination. However, employers can also use subtler methods that still harm your career and violate your rights. One of the most common and damaging subtle forms of retaliation is manipulating your performance review.
How Can a Performance Review Become Retaliation?
A performance review is supposed to be an objective evaluation of your work. It should be based on established metrics, documented job performance, and consistent standards applied to all employees. However, when an employer seeks to punish you for protected activity—such as filing a discrimination claim or reporting sexual harassment—they may weaponize the review process.
Common retaliatory actions within a performance review include:
- Undeserved Low Ratings: Suddenly receiving poor ratings despite a consistent history of good or excellent work.
- Fabricated Criticisms: Introducing vague, unsubstantiated, or entirely false criticisms about your work performance or attitude.
- Reduced Opportunities: Mentioning that you are now ineligible for promotions, raises, or favorable assignments because of the new, poor rating.
- Differential Treatment: Having the review process and standards applied to you differently than they are to your colleagues.
The goal of this type of retaliation is often to create a paper trail justifying future adverse actions, such as demotion or wrongful termination, making it seem like a legitimate business decision rather than an illegal act.
What is "Protected Activity?"
Protected activity generally involves asserting your legal rights as an employee. It most often includes:
- Reporting Illegal Discrimination or Harassment: This includes reporting discrimination based on your race, gender, age, or disability status.
- Filing a Charge: Initiating a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).
- Whistleblowing: Reporting illegal activities, such as fraud or safety violations, to a government agency or authority.
- Participating in an Investigation: Assisting in a coworker's discrimination or harassment investigation.
If a negative performance review follows shortly after you engaged in one of these protected activities, it could be strong evidence of illegal retaliation.
Protecting Yourself and Your Career
The key to protecting yourself is documenting everything. If you suspect you are being retaliated against through a performance review, take these steps:
- Document Your Performance: Keep a detailed record of your accomplishments, positive feedback, and any objective data that contradicts the negative review.
- Gather Context: Note the date of the protected activity and the date of the negative review. The close timing is often key evidence of retaliation.
- Review Your Personnel File: In a formal response to the review, point out how the negative evaluation conflicts with your past positive history.
- Seek Legal Counsel: If you believe your performance review is a form of retaliation, it is essential to consult with an experienced employment law attorney who can assess your claim and guide you on the best course of action.
The law offers protection against workplace retaliation, but navigating these complex issues requires professional experience. You deserve a work environment free from illegal punishment.
Talk to Birmingham Employment Retaliation Lawyer
If you are an employee in Alabama facing retaliation, the attorneys at Michel Allen & Sinor are here to help. We are dedicated to safeguarding employees’ rights here in Alabama.
Call us today for a free, confidential consultation at (205) 265-1880 to discuss your case.
