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FAIR WARNING

Protecting the Employee and the Employer

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Most Discrimination Claims have nothing to do with Discrimination

  • Systemic flaws result in:

Perception of unfairness by employees.

Inadequately trained supervisors in dealing with performance evaluations.

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Supervisors fail to provide adequate notice

  • When their expectations are not being met
  • They ignore problem employee behavior until they can endure it no longer

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The Result

  • The supervisor explodes.
  • The employee has no way of correcting the behavior.
  • The employee perceives the action as unfair.
  • This produces anger---the catalyst for a discrimination claim.

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CHANGE THE SYSTEM

  • from PUNITIVE SYSTEM - Rather than issuing warnings and reprimands as a last and only resort (punish employees into compliance).
  • to NON-PUNITIVE SYSTEM - Use corrective counseling (develop responsible and committed employees).

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PROBLEMS

  • As a rule:
  • Supervisors over evaluate
  • Examples:

Poor employees – rated marginally competent

Marginal employees – rated satisfactory

Satisfactory employees –rated above standard

Good employees – rated as deserving high throne

  • The employee reasons:
  • For years I have been a stellar employee.
  • Now suddenly I am being discharged. It can not be my performance.
  • It must be another (illegal) reason (my group membership – race, gender, age etc).

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False Sense of Security

  • Inflated appraisals mislead employees and give them no opportunity to improve.

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PRETEXT

  • Years of steady evaluations followed by a bad one that results in firing – shows inconsistency and is called pretext. The employee can say it’s not me – and legally this is powerful.

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GET BETTER

  • Inflated performance appraisals deprive employees of the opportunity to get better (improve performance) at their job.

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USE RANKINGS

  • If a numerical rating system of some type is used---
  • After all employees under you have been appraised ---
  • Force rank all of them.

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RANKINGS

Supervisors forced to make internal comparisons by RANKING

Will produce evaluations that much more closely reflect reality

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KEY LEGAL QUESTION

  • EEOC will ask the employer if any other employee has engaged in the same or similar conduct as the charging party but was not discharged.
  • This should be a must question before discharging any employee.

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RECORDS

  • Every company/business/organization should keep company-wide disciplinary records.

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HISTORY

  • Regular meetings of supervisors should be held to discuss problem-employees.
  • HELPFUL by:
  • Sharing “war-stories”
  • Promoting consistency

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GRIEVANCE PROCESS

  • Use a peer review option for the employee who files a grievance.
  • Even if the peer review goes against the employee it is significantly less likely the employee will file a lawsuit.

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HONEST APPRAISALS

  • Must be learned
  • Take practice
  • Must be fair
  • Have the best possibility for a WIN-WIN outcome

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COURAGE

  • Honest performance appraisals take courage.
  • Most supervisors wimp out.
  • DON’T LET IT BE YOU!!!!!

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Karen Klisch, PhD

from

Segal, J. A. (1992, June). Firing without fear. HRmagazine, 37.