Employers notoriously have a hard time documenting performance issues of their employees. Sometimes it's a manager that doesn't want to be "mean." Sometimes there is just too much going on to take the time to properly document. And sometimes - especially when the employee belongs to a protected category - there is a reluctance to confront employees for fear they will allege discrimination.
Employers should fight through the hardships. A recent case in Virginia highlights just how effective proper documentation can be in defending against claims of discrimination.
In 2018, a 12-year Virginia Development Housing Authority (VDHA) employee, who was an African-American woman, sued the VDHA, alleging race and gender discrimination and that her supervisors retaliated against her for complaining about the discrimination. The VDHA asked the court to dismiss the case on a motion for summary judgment and set forth a detailed history of performance concerns supported by evidence. The employee did not dispute most of the facts outlined by the VDHA.
Among the facts the VDHA was able to support with evidence:
The employee's performance review from 2012 noted that while she had a strong customer focus, there were issues with efficiency, collaboration, and professionalism.
In 2013, the employee was given a written counseling regarding communication, judgment, responsibility, leave tracking, and core duties.
In 2016, the employee was informally counseled about personal phone calls, as was another white male employee.
The employee's 2016 performance review identified areas for growth including communications and attendance.
In 2017, the employee received a counseling for violating an attendance policy.
The employee's 2017 performance review contained several areas for improvement.
In 2017, when the employee complained about harassment and unfair treatment and appealed her performance review, VDHA hired a third-party consultant to investigate the complaint and performance review appeal.
The court provided a thorough review of the VDHA's evidence and the employee's statements, and dismissed the case because the employer was able to show that the employee was not meeting legitimate performance expectations. In ruling in favor of the VDHA , the court noted that:
VHDA has submitted a great deal of evidence in support of its contention that throughout her employment at VHDA Smith struggled to meet VHDA's legitimate expectations. For instance, it asserts-and provides documentary evidence to show-that VHDA counseled Smith both formally and informally throughout her approximately twelve years of employment and that many of the problems persisted over time.
Think about this: if you had to provide evidence of a performance issue of an employee from six or eight or ten years ago, would you rather rely on the memory of employees that may or may not still work at your company, or documentation that is easily accessible in the employee's personnel file?
I think the answer is clear, but too often employers are left relying on memories. Take a cue from the VDHA and make sure all performance issues and concerns are brought to the employee's attention and documented in a timely manner.