It is illegal to conduct performance reviews in a discriminatory manner, meaning evaluations cannot be based on an employee's protected characteristics rather than their actual job performance. Specifically, it is unlawful to hold employees to higher standards or give them negative evaluations because of their race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability, age (40 or older), or genetic information (including family medical history).
Understanding Illegal Discrimination in Performance Reviews
Performance reviews are designed to assess an employee's work quality, productivity, and contribution to the organization. When subjective biases or personal characteristics influence these assessments, it constitutes illegal discrimination. Such practices can lead to unfair employment outcomes, including denial of promotions, lack of development opportunities, or even wrongful termination.
Key Prohibited Bases for Evaluation
Discrimination in performance reviews can occur when an employee is judged or treated differently based on factors unrelated to their job duties or performance. The following table outlines the key protected characteristics and how their consideration in a review can become illegal:
| Protected Characteristic | Illegal Actions in Performance Reviews |
|---|---|
| Race, Color, National Origin | - Assigning lower ratings or harsher criticism to an employee based on their ethnic background, skin color, or country of origin. - Holding individuals of certain racial groups to more stringent performance metrics than others. |
| Religion | - Evaluating an employee negatively due to their religious beliefs, practices, or non-belief. - Denying positive feedback or opportunities because an employee observes religious holidays or adheres to specific religious customs. |
| Sex (including Pregnancy, Sexual Orientation, Gender Identity) | - Lowering a female employee's score because she is pregnant or recently returned from maternity leave. - Giving negative feedback to an employee based on their sexual orientation or gender identity, rather than their work output. - Applying different performance standards to men and women for the same role. |
| Disability | - Underrating an employee's performance due to a disability, without considering whether reasonable accommodations could enable them to meet job standards. - Focusing on limitations caused by a disability rather than actual job performance or contributions. |
| Age (40 or older) | - Giving older employees (aged 40 and above) lower ratings or more critical feedback based on ageist stereotypes, such as assumptions about adaptability or technological proficiency. - Emphasizing a perceived lack of "youthful energy" over concrete results. |
| Genetic Information (including Family Medical History) | - Using information about an employee's genetic tests or family medical history as a basis for negative evaluation or to suggest they are less capable of performing their job. |
Practical Implications and Solutions
To ensure performance reviews are legal and effective, employers should:
- Focus on Objective Metrics: Base evaluations primarily on measurable job duties, pre-defined performance goals, and documented work behaviors, rather than subjective opinions or personal traits.
- Consistent Standards: Apply the same performance standards and evaluation criteria to all employees in similar roles, regardless of their protected characteristics.
- Train Reviewers: Provide comprehensive training to managers and reviewers on anti-discrimination laws, unconscious bias, and fair evaluation practices.
- Documentation: Maintain clear, consistent, and factual documentation of performance throughout the review period to support all ratings and feedback.
- Two-Way Communication: Encourage open dialogue during the review process, allowing employees to provide their perspective and address any perceived biases.
- Review Process Audits: Periodically audit performance review outcomes and processes to identify and correct any patterns of potential discrimination.
By adhering to these principles, organizations can ensure their performance review systems are fair, legal, and truly reflect an employee's contributions to the company.
