New Law and Issues
Latest Legal Issue of Interest Before an employee can recover any money from an employer for discrimination, harassment, or retaliation, the employee must prove that the employer took an adverse employment action against the employee. Across the country, courts have differed when deciding whether negative comments made in an employee's performance evaluation constitute an adverse employment action. Recently, two Ohio courts addressed this issue that has widespread application to employment disputes, and the two Ohio courts seem to have reached differing conclusions.
On June 2, 2004, The Ninth District Court of Appeals in Summit County, Ohio decided Jones v. Goodyear Tire and Rubber Company. The court recognized that negative perfomance reviews can constitute an adverse employment action. The court relied on holdings from other jurisdictions. One case cited was from the United States Court of Appeals for the First Circuit. The Ninth District Court of Appeals said the First Circuit held that "an allegedly discriminatory performance evaluation constitutes a discrete discriminatory act." The other case that the Ninth District cited was from the United States District Court for the Southern District of New York. According to the Ninth District Court, the New York court held that "a workload review that is alleged to be discriminatory is a discrete discriminatory act because it also involves an assessment of an employee's performance by an immediate supervisor." On June 30, 2004, a different Ohio court of appeals reached what appears to be an opposite conclusion. The Sixth District Court of Appeals in Lucas County, Ohio decided Hann v. Perkins Twp. The employee claimed retaliation and discrimination, but because she could not prove that any adverse action was taken against her, she lost on both claims. Among the adverse employment actions she claimed was that her employer had stuffed her personnel file with negative comments. The Sixth District Court of Appeals cited decisions from other jurisdictions to hold that the negative comments were not an adverse employment action. First, the Sixth District Court of Appeals cited a case from the United States Court of Appeals for the Seventh Circuit. According to the Sixth District Court, the Seventh Circuit had ruled that "negative evaluations alone do not constitute an actionable adverse employment action." Second, the Sixth District cited a decision from the United States Court of Appeals for the Eighth Circuit, which according to the Sixth District court, held that a "claim that college retaliated against professor by "papering" his file with false allegation failed as a matter of law because professor failed to show college took any adverse action because of allegations."
|
|
|
So what should employers and employees do? These kinds of conflicts among courts are not unusual. They are the reason that so often when a client asks their lawyer whether the client can or cannot do something, the lawyer answers, "it depends." Clients want clearer answers. But as these two cases illustrate, that is often not possible when the courts cannot consistently decide what the law is on a particular issue. For now, the safest approach for employers is to assume that negative performance reviews can be a sufficeint basis for discrimination, harassment, or retaliation claims by employees. Employees, on the other hand, should be concerned about whether negative remarks in their files are the result of true performance deficiencies or some other, unlawful motivation. But if an employee has only evidence of negative treatment in a performance review with no other adverse action taken by the employer, the employee should be cautious before pursuing claims against the employer unless the employee is prepared to fight the long hard battle associated with establishing new law.
| |