ABA article discusses age discrimination and performance evaluation "grade inflation"
Last week’s ABA Journal eReport had this article by Stephanie Francis Ward:“OVER 40 AND UNDERACHIEVING; Honesty and Proper Documentation Can Protect Employers Against Age Bias Suits by Poor Performers.”
“Employees might be surly, unproductive and have a sense of self-entitlement about their jobs. But if they fall into a protected age class, say employment defense lawyers, management is often loath to discipline them. Instead, they choose to work around the problem person, whether out of a sense of loyalty or simply a desire to avoid confrontation.”
“These avoidance tactics can backfire when a company has to lay off workers.”
A significant problem, say many, is that older employees whose performance falls below standards often are never alerted to the problem until they are fired. One reason this happens, says Chicago employment defense lawyer Dana S. Connell, is that managers grade-inflate performance evaluations because they are not comfortable being honest with older employees.
Some suggestions in the article:
Rate employees against peers.
Performance reviews may be more honest if more than one person writes them.
Directly involve the problem employee, including him or her in the review process, jointly setting goals to achieve by a specific deadline. That way, if the employee is later fired, he or she can’t say there was no knowledge of the problem. A good way to do this is with a “last-chance agreement,” stating how the employee needs to improve and including a written commitment by the employee to do what it takes to make the change.
This goes for more than just age discrimination. I have always been of the opinion that while accurate, well-done performance reviews can be a great help legally, having no performance reviews at all is far preferable to having poorly and hastily done, inflated ones. It’s one of the first questions a plaintiff’s lawyer asks: “how were your evaluations?” If they were great, and the employee was fired shortly after the last one, for a questionable reason, it’s a case with potential (from the plaintiff’s side).
