By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Business Corporate Attorney

A commonly held misconception about workplace discrimination is that it always happens kind of like this: The boss of Big Company invites Sally, who is six months pregnant, into his office to talk about a serious matter concerning the status of her employment and says, “Well, because you are a woman, you’re pregnant, and are of a certain nationality that I’m not a fan of, you cannot work in my company anymore.  Sally, you’re fired.”

Actually, in 2016 it almost never happens like this anymore.  Employers know that if they act as blatant as the boss of Big Company, they will face a tremendous discrimination lawsuit.  Intriguingly enough, the same danger of being sued for discrimination exists in the most unexpected of places: poorly administered performance reviews.

Imagine there is an office manager who was rated highly on the performance reviews – the review noted that she was energetic and detail-oriented.  However, shortly after she announces her pregnancy, her work ethic is questioned – suddenly, the comments are different.  They say things like “lazy” or “unstable.”  Or imagine there is an employee who at one time was identified as an effective leader, but then, after she filed a sexual harassment complaint about a co-worker, her employer identified her as having strained relationships with her fellow employees.  These new observations might be coincidental, genuine, and well-supported, but the key part of this – is what it looks like to a court or jury, when the attorney for a former employee is arguing a discrimination lawsuit.  Both of these performance reviews can potentially provide evidence of retaliation or discrimination.

Frequently, a plaintiff’s attorney will rely on facts which establish that the employer failed to follow his own set of policies and procedures, which in turn helps prove the plaintiff’s case for unfair treatment in the workplace.  For example, there is an employee who receives multiple negative or sub-par reviews, but the comment section is blank.  This would allow a sharp attorney to argue that there were no legitimate reasons for the rating, or else those legitimate reasons would have been written there.  Or let’s take this a bit further, imagine if an employee appeals a negative rating, but never receives a response.  The same attorney can argue that there was no reason to deny the appeal, because the reason, too, would have been presented.  The attorney can quickly paint a picture that is favorable to the plaintiff in front of a jury – when, in reality, all of these problems stem from poorly administered reviews and lackluster HR departments.

What can an employer do to reduce the risks of bias in their reviews?  First, it helps to have in house legal counsel to assist employers in reducing the risk of bias in their performance evaluations.  Second, instead of being too general or ambiguous in descriptions of an employee’s performance – provide examples of the employee’s behavior that support those observations.  For example, if you believe an employee is not enthusiastic – you wouldn’t write “Employee X is lazy.”  Instead, you would cite how every time you ask the employee to move a bunch of cardboard boxes, he huffs and puffs, whines, and takes three hours to complete tasks which should take all of fifteen minutes.

Ultimately, having counsel can prevent employers from being blindsided by a serious discrimination lawsuit.  You’d rather be paying a comparatively small amount of money to prevent the commencement of a lawsuit, than paying a hefty sum to defend yourself and your company in one.

To discuss your NJ Business and Corporate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.