Case Study: Tell the Truth in Performance Evaluations

08/20/08

The Case
“So let me recap,” said Kendra, the president. “First, you’d like to get rid of Ron for his poor productivity. Second, Ron has a hearing disability. Third, you started hinting to Ron that he was about to lose his job—then what?” She nodded to Bob to continue.

“I said—in a moment of frustration— ‘You need to pick up the pace, Ron, or else you’ll be standing in the unemployment line soon.’ So then he says, ‘That’s interesting. All my performance evaluations say I’m a great employee. Maybe you’re trying to get rid of me because of my disability?’”

Kendra said, “Tell me about these evaluations.”

“Well,” said Bob. “I’m guessing Stan—his supervisor until he left six months ago—is one of those guys who found it hard to say anything bad about anyone. And he goes way overboard—he makes Ron seem like he’s nothing less than the Tiger Woods of the company.”

“Yet Ron is a truly poor employee?”

“He’s not suited to this kind of work,” said Bob. “It has nothing to do with his disability. Plus, I’ve spent a lot of time working with him to get him up to snuff and even given him a couple of written warnings. Nothing works. He’s hurting the team and the company.”

Kendra said, “So it sounds like an open-and-shut case except for those evaluations. Let me see what our lawyer says.”

The Analysis
There are several lessons to be learned from the predicament this employers’ supervisors have placed it in. The most obvious problem at issue is how to deal with the fact that while Ron’s current supervisor would like to discharge him, Ron’s previous supervisor gave him outstanding evaluations that apparently weren’t a true measure of his actual job performance.

There is no question that if Ron is discharged and sues the company for disability discrimination, those reviews will come back to haunt the employer. Plaintiffs’ attorneys love having that kind of evidence to show a judge or jury. On the other hand, if this supervisor tended to inflate all his subordinates’ reviews, that will come out in discovery (the lawyers’ examination of facts and documents held by opponents to help them prepare for trial). Besides, if Ron’s productivity is poor from an objective, quantifiable standpoint, that should also help the employer prove that Ron’s earlier reviews were inaccurate and not indicative of his actual performance.

Essential: Effective Training
Nonetheless, it would sure be a lot better for this employer if it didn’t have to contend with the potential impact of numerous glowing reviews about a poor performer it wants to terminate.

For future reference, this employer should conduct training with its supervisors on drafting performance reviews. It can emphasize that while a review doesn’t have to be scathing to be effective, reviews should be reasonably accurate depictions of the person’s work performance and conduct. It’s also helpful to keep the review based on objective criteria to the greatest extent possible rather than subjective, opinion-based criteria.

Analyze the Disability
Going back to Ron, while he has a self-professed hearing disability, his hearing loss may not actually constitute an impairment of such severity that it would amount to a “disability” as that term is defined under the Americans with Disabilities Act. The employer should consider whether Ron is actually disabled within the meaning of he act. If he is, it should take the trouble to analyze whether Ron’s unacceptable performance is in any way related to his disability.

If so, the employer would be wise to determine whether there are any accommodations it can provide that could enable Ron to do his job acceptably—and explore those options before it considers terminating him.

Terminate Only on Evidence and Precedence
Otherwise, the company should analyze whether the existing documentation of Ron’s poor performance is sufficient to justify discharge. First two questions: “Would we terminate anyone else who had compiled this record of performance?” And, “Have we done so consistently in the past?” If the answer to either question is no, the company is taking a risk in discharging Ron.

In that case, the safer course of action would be to provide Ron with reasonable assistance in overcoming his performance deficiencies, and continue to carefully and accurately document both its efforts to assist Ron and his shortcomings until it has a better “paper trail” upon which to base a termination.