Can I Sue for an Unfair Performance Evaluation?

Many of us dread the annual performance evaluation. Some look forward to it as an opportunity to tout their achievements. Regardless of your feelings about the review process, it's important to understand that you have legal rights as an employee. 

Unfair performance evaluations are unfortunately relatively common. They may come about for various reasons. Sometimes they pose legal issues that can give rise to certain claims.

Both state and federal law govern these claims. So, if you suspect your review was unfair, you'll want to speak with an employment attorney licensed in your state. They can help you understand the remedies to which you may be entitled.

In this article, we'll review some principles behind various legal claims you might bring against your employer for an unfair performance review. Let's begin with what performance evaluations generally cover.

What Is an Employee Performance Evaluation?

An employee performance evaluation is a formal assessment of an employee's work performance. It's a key tool in performance management for evaluating an employee's work. 

Sometimes, the employer bases employee evaluations on specific performance metrics. They might incorporate these metrics or other criteria into template form to ensure uniformity and fairness. The specific content and format can vary amongst organizations.

Similarly, some employers refer to these reviews as employee “performance reviews" or performance appraisals. Here, we use these terms interchangeably.

Organizations usually conduct these reviews periodically (often annually). They typically center around a formal meeting. The employee and their manager generally convene to discuss the employee's job performance over the designated period.

Supervisors typically conduct the review. Some employers build in peer reviews and/or self-assessments as part of the evaluation. Depending on employer policy, employees may also have an opportunity to provide a rebuttal to negative feedback or a negative review.

Performance Review Topics

Common areas addressed in the review process include the employee's:

• Strengths
• Areas for improvement
• Achievements over the specified period
• Future performance goals
• Career development opportunities

When done properly, these evaluations can help employees understand how well they are meeting job expectations. The process should also afford an opportunity for candid communication between employees and management to discuss any concerns.

However, that's not always the case. We sometimes see unfair treatment of employees in the review process. 

Legal Claims Based on Performance Reviews

The legal claims an employee might bring in response to an unfair evaluation can vary. They'll generally depend on the specific circumstances and state law. 

Below, we review some of the legal claims frequently asserted by employees facing unfair performance reviews.

Discrimination

Discrimination claims are among the most common legal actions related to employee performance reviews. They can arise when an employee believes they were evaluated unfairly due to a protected characteristic like race or gender. If you had an unfair review because of your protected characteristic(s), you may have a discrimination claim.

Several federal laws might be relevant to your situation. Key ones include:

• Title VII of the Civil Rights Act of 1964: Title VII prohibits employment discrimination based on race, color, religion, sex/gender (includes pregnancy, gender identity, and sexual orientation), or national origin
• The Americans with Disabilities Act (ADA): Protects employees with disabilities from discrimination
• The Age Discrimination in Employment Act (ADEA): Protects employees aged 40 and older from age-based discrimination

State anti-discrimination laws often supplement federal protections with additional avenues for recourse.

Retaliation

Retaliation can occur when an employee faces negative consequences after engaging in protected activities. Protected activities are actions that are legally safeguarded by federal or state law. Retaliation is against the law. For example:

• Title VII protects employees from retaliation for opposing discriminatory practices.
• The Whistleblower Protection Act protects employees who report illegal activities or violations of workplace safety.

Protected activities can take many forms. They might include:

• Filing a discrimination complaint
• Inquiring about worker rights
• Exercising leave rights

If you're concerned you received a poor performance evaluation because you engaged in protected activity, you may have a claim for retaliation.

Breach of Contract

Sometimes employees have written employment contracts. If they outline specific evaluation procedures or standards, your employer must adhere to these terms. If they do not, you may have a breach of contract claim.

Defamation

Under certain circumstances, you may have a defamation claim for an unfair performance review. This generally requires three elements:

• False statement: The performance review contains statements that are untrue.
• Publication: The review was communicated to someone other than the employee.
• Harm: The false statement caused harm to the employee's reputation.

State law primarily governs defamation claims. As such, the exact requirements may vary by jurisdiction.

Violation of Privacy

Employees have a legal right to privacy regarding their personal data. This includes protection against an employer's unauthorized access, use, or disclosure of your confidential information.

If an employer includes sensitive information about you in your review and shares it with a colleague, for example, who doesn't have a legitimate need to know it, you may have grounds for a privacy violation claim.

Wrongful Termination/Demotion

In some cases, an unfair performance evaluation leads to an employee's termination or demotion. The employee might bring a wrongful termination or demotion claim under these circumstances. 

When applicable, employees often combine these types of claims with others. These might include discrimination, retaliation, or contractual breach claims.

Constructive Discharge

Constructive discharge can occur if an employee resigns due to intolerable working conditions created by an unfair review. 

For a constructive discharge claim to be valid, the employee must prove that the conditions were so unbearable that resignation was the only reasonable option.

What Can You Do?

If you think your performance evaluation was unfair, there will likely be several ways you can proceed. An experienced employment lawyer can help you understand your options under state and federal law. In the meantime, consider taking the following steps:

Gather Supporting Information

Document everything. Keep detailed records of your performance, communications, and incidents that you believe contributed to the unfair evaluation.

File Agency Charges

In some cases, you'll need to file a charge with the Equal Employment Opportunity Commission (EEOC) before you can sue. This generally applies to most discrimination claims and retaliation claims related to discrimination. State law may also mandate filing with state agencies for certain claims as well.

Speak With Human Resources

In some cases, your human resources department (HR) may be able to address your concerns internally. However, you may fear retaliation or lack trust in HR's ability to be impartial.

For these and other strategic reasons, you may want to touch base with an employment attorney before taking action.

Getting Legal Advice

The EEOC and other government agencies generally work with strict deadlines. This course of action may not provide you with the remedies to which you're entitled. But it's often necessary to preserve your rights to certain legal claims. As a result, it's highly advisable you consult an attorney sooner rather than later.

You'll want to identify someone well-versed in federal law and the employment laws of your state. Fortunately, FindLaw's directory of employment attorneys is arranged geographically. So, just click on your state and narrow by city if you'd like. You'll instantly be connected with ratings and contact information for local experts.

You can speak with them confidentially about your situation. They can explain the remedies and protections available to you. Whatever you do, don't go it alone. Enlist the help of a trusted advisor. They might just be your most important ally at this time.