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If you are like the majority of employers out there, you don't like to fill out your employees' performance reviews, especially the negative ones.
There's too many of them to do and you have to leave on vacation; Employee X is going to spend an hour in your office arguing with you; Employee Y is going to cry.
Stop treating them like a chore. If there comes a time when you have to terminate an employee for performance issues that aren't properly documented, you are setting yourself up to spend a lot of time in court, especially if the employee is in a protected category.
A federal court in Maryland recently schooled an employer trying to beat a race and age discrimination claim early in the litigation process, highlighting the need for employers to be very honest when conducting performance evaluations of their employees.
In the case, the plaintiff was fired from her job and sued her former employer for race and age discrimination. The employer, a homeowner and condominium association management company, tried to get the case dismissed before trial, arguing that her termination was not based on her race or her age, but rather on her poor performance and failure to follow orders.
The problem for the employer was that ALL of the employee's performance reviews had been positive, and she had continuously received pay raises. It was only after the employee had raised issues regarding potential discrimination that the employer started articulating concerns about her performance, and those concerns were never made part of a performance evaluation.
The court took issue with the employer's argument, stating “where a defendant articulates poor work performance as its legitimate reason for taking an adverse employment action, a conflict between performance reviews and testimony [in the litigation] may serve as evidence of pretext.”
The word "pretext" is important here, because if the articulated reason for the termination is determined to be pretextual, the employer can't rely on that reason early on in the litigation.
In the end, the court allowed the case to proceed to trial. Had the employer been successful, it could have gotten itself out of expensive litigation early on.
My takeaway: Many of the companies I counsel struggle with giving honest feedback to their employees. It's difficult for a manager to develop a rapport and relationship with a subordinate and at the same time tell that employee that they are not living up to expectations. BUT - that's one mark of a good manager - the ability to have hard conversations that could lead to improved performance, perhaps at the expense of a little bit of a strained relationship. And, if you don't have honest performance reviews in your system, you'll have a harder time beating discrimination claims.
What you should takeaway: Don't let performance reviews be perfunctory, check-the-box exercises. Train your managers to protect your company by being honest (even if brutally) with their direct reports in their performance reviews. And, be brutally honest with your mangers that pro forma performance reviews just are not acceptable.