Contents
Performance Appraisal Basics
The Performance Appraisal Form
The Performance Appraisal Process
1. Plan: Job Goals and Expectations
2. Perform: Work to Meet Goals
3. Evaluate: Assess Performance
4. Discuss: Meet to Review the Performance Appraisal Form
5. Finalize: Complete Appraisal Forms and Implement Changes
Tips for Successful Performance Appraisal Meetings
Performance Appraisals and the Law
How to Establish a Performance Appraisal Process
Performance Appraisal Language
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Performance Appraisals and the Law
Companies are not required by law to conduct performance appraisals, but companies that do must comply with the law. The law treats performance appraisals in the same way it governs employment practices such as recruitment, firing, promotion, and compensation. In all of these processes, it’s illegal for employers to discriminate based on legally protected attributes, which are personal traits including:
- Race
- Color
- Religion
- Sex
- Sexual orientation
- Age
- National origin
- Marital or veteran status
- Physical or mental disability
How to Establish a Legally Defensible Process
Many of the policies that make performance appraisals fair also make the process legally defensible. For instance, regular feedback and thorough documentation enable companies to prove that controversial decisions made during the appraisal process stem from employee performance, not from discrimination. Follow the guidelines below to ensure that you comply with the law by avoiding discrimination throughout the process:
- Focus on the job, not the person: Legally protected traits or attributes should never factor into a performance appraisal.
- Provide examples: Be sure to back up every performance appraisal with dated, documented examples from specific situations.
- Monitor for discrimination: Ask an objective person to vet the appraisal form and the resulting personnel decisions for any signs of discrimination. If you’re still unsure, ask your supervisor for advice or consult your company’s legal counsel.
- Train supervisors thoroughly: All employees responsible for conducting performance appraisals must understand the legal risks and be taught how to avoid discrimination throughout the process.
- Use an appeals process: Set up a system that allows employees to respond to or contest appraisals. An appeal process gives employees some recourse before bringing a lawsuit against the company.
Performance Appraisals in Court
The three most common types of lawsuits employees bring against companies involve wrongful termination, discrimination, or harassment. When an employee brings such a suit against a company, attorneys on both sides will try to use the employee’s performance appraisals to prove or disprove the employee’s case.
Wrongful Termination Lawsuits
Most employees have an at-will relationship with the company, which means neither the employee nor the employer is bound by an employment contract. At-will employees can quit or be terminated at any time for any reason—except for reasons based on legally protected attributes.
Supervisors must be careful not to compromise the at-will relationship during the performance period, on the appraisal form, or in the appraisal meeting. Doing so exposes the company to a potentially valid wrongful termination claim. To avoid compromising the at-will relationship:
- Never make statements that imply a promise of continued employment, such as “You have a great future here” or “Keep up the good work and you’ll always have a job.”
- Make sure the performance appraisal form and the appraisal meeting contain detailed documentation of performance-based reasons for termination.
Discrimination and Harassment Lawsuits
Discrimination and harassment lawsuits happen when employees feel they’ve received unfair or hostile treatment—not necessarily termination—due to a legally protected attribute, such as sex or race. Attorneys can use performance appraisals in these suits as well, so employers should avoid all of the following:
- Making statements that might be considered discriminatory or harassing, such as, “Margaret’s German accent makes her unappealing to customers”
- Referring in any way—even jokingly—to an employee’s legally protected attributes, such as age or religion
- Using language that implies that an employee is “different,” such as “Ted just doesn’t fit in around here”
| Acknowledgments & Disclaimer |
