Retaliation vs. Performance-Based Actions

You’ve earned a rock-solid reputation at your company, and your boss typically gives you stellar performance reviews. Your latest review, though, isn’t looking so hot even though your work hasn’t changed. Could it be because you reported your boss for discrimination? Maybe.

Understanding retaliation vs. performance-based actions can be tricky because it’s not always clear whether your employer is retaliating against you. Here’s how to tell if that bad performance review is legit or a farce meant as punishment to hurt you.

What Is Retaliation?

Legally, your employer has committed retaliation in the workplace if they take adverse action against you for:

• Refusing to obey an illegal request
• Participating in a protected activity
• Protected activities can include:
• Filing a complaint with the Equal Employment Opportunity Commission (EEOC)
• Participating in an internal investigation, proceeding, or hearing regarding discrimination
• Refusing to obey orders that would lead to discrimination
• Communicating with your manager about discrimination
• Filing or participating in a discrimination lawsuit
• Fighting off unwanted sexual advances or protecting others from sexual harassment
• Discussing pay with co-workers
• Opposing workplace discrimination

What Are Performance-Based Actions?

Performance-based actions, as the name implies, are directly tied to your performance. They are objective, fair, and reasonable.

Examples include:

• You come into work late too often, so your employer writes you up.
• The quality of your work has slipped, so your boss puts you on a performance improvement plan (PIP).

If your employer puts you on a PIP for no good reason, they may have done so to retaliate against you.

Distinguishing Retaliation From Performance-Based Actions

It’s usually rather easy to distinguish between retaliation vs. performance-based actions, but sometimes, the matter isn’t so clear-cut. Your employer may be retaliating against you if:

• Your performance review includes unwarranted bad feedback. For instance, your boss might say that your work is below average, but the rest of your team has zero complaints.
• Your boss seems to assign you arbitrarily poor scores with no explanation.
• Your boss rates you according to different metrics than they use for your co-workers.
• You’ve never had any other complaints or poor performance reviews.
• You’re the recipient of a recent award, promotion, or other commendation. If you recently earned an award for your great work, it doesn’t make sense for your boss to put you on a PIP.

How Can Employers Use Retaliatory Performance Reports To Punish Employees?

If you’re wondering why your employer would give you a poor performance review or put you on a PIP for no reason, it may be because they want to punish you somehow. Perhaps they’re furious that you reported them for discrimination. You’re a good employee, so they can’t just fire you. Instead, they make up reasons that sound valid to justify letting you go.

Employers can use retaliatory performance reviews to:

• Deny you promotions and job advancement opportunities
• Change your job title
• Change your responsibilities
• Subject you to increased supervision or micromanagement
• Isolate you from colleagues (for example, by excluding you from meetings and trips)
• Take away perks and benefits
• Demote you, fire you, or threaten to let you go

What Can You Do If Your Performance Review Is Retaliatory?

If you believe that your employer gave you a retaliatory performance review, you may want to file a complaint with the Equal Employment Opportunity Commission. This watchdog agency looks out for the rights of employees and regulates laws regarding the discrimination of workers based on age, gender, disability status, and national origin.

The California Civil Rights Department protects employees from workplace discrimination as well.

If your employer has committed discrimination or workplace retaliation, remedies can include:

• Reinstatement
• Back pay
• Training
• Promotion
• Attorney’s fees
• Out-of-pocket expenses
• Reasonable accommodations
• Punitive damages

Addressing Performance Concerns Fairly

If you’re an employer and you know that an employee has filed a discrimination complaint against you (or participated in some other protected action), then you must tread carefully. When you provide performance reviews, you must rate the employee as objectively as possible. If you take your anger out on the employee, you could end up breaking the law.

Fairly rate all employees on metrics such as attendance, work quality, client feedback, and so on. If you have a legitimate complaint, it’s fine to dock the employee on their review. But if you simply want to hurt the employee, you might soon find yourself in legal hot water.

It may be helpful to ask for feedback from other supervisors or the employee’s team. This way, you’ll know whether or not you’re making fair performance-based employment decisions.

Need Help Understanding Retaliation and Employee Performance? Call Us

If you need more guidance on retaliation vs. performance-based actions, contact a workplace retaliation lawyer at Kent Pincin at (310) 376-0922 to request a free consultation regarding the legal aspects of retaliation cases. We can help you determine whether your employer has issued you a retaliatory performance review.