If a former employee sues after being fired for poor performance, his attorney will almost certainly ask to look at past performance appraisals. Any that indicate the employee had previously been doing a good or excellent job may be used against you as proof the employee was fired for illegal reasons.
It may turn out that the employee started getting poor reviews when a new supervisor began applying different standards after a former supervisor had been letting the employee coast. Don?t wait until a case is in court to figure out if that?s what?s going on.
Whenever an employee?s review shows a sudden performance decline, find out why. If there?s a new supervisor, get her to provide details and explain why, going forward, she has different expectations. That way, you will be prepared for the jury.
Recent case: John worked as an accountant for US Steel for more than 20 years. When his old supervisor retired, a woman many years his junior got the job. She was less than impressed with John?s accounting skills despite his MBA and other past accomplishments. Soon, John found himself on a performance improvement plan, which he didn?t complete.
He was terminated and sued, alleging age discrimination.
US Steel sought to exclude John?s past performance reviews, arguing that they were irrelevant. His new boss simply had higher expectations.
Unfortunately, she had also made at least one age-related comment, telling John to ?step up? his game since ?it?s kind of late for you to be looking for another job.?
That was reason enough for the court to order a trial on age discrimination. The court said that John can present his past reviews and argue the new ones were just a pretext to get rid of an older employee. (Kelly v. United States Steel, No. 2:11-CV-00193, WD PA, 2012)
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