A Poor Performance Review Does Not Create a Hostile Work Environment


In a common-sense ruling, the U.S. Court of Appeals for the Fifth Circuit affirmed the dismissal of an employee’s hostile work environment (HWE) harassment claim that was based, in part, on a poor performance review.

Under Title VII, HWE harassment consists of multiple acts over a period of time that are so severe or pervasive that they alter the conditions of employment and create an abusive working environment. In order to bring a claim of Title VII harassment, an employee must file a timely charge of discrimination with the Equal Employment Opportunity Commission – meaning within 300 days of the alleged harassment. In the case of HWE harassment, at least one of the harassing events must fall within the 300-day time period; if it does, then all the prior acts of alleged harassment can be considered.

In Edwin v. Clean Harbor Environmental Servs., Inc., the employee claimed that he had been subjected to six incidents of harassment during his employment tenure, but only the negative performance review fell within the 300-day time period. However, as the Fifth Circuit noted, “criticism of an employee’s work performance does not satisfy the standard for a harassment claim where the record demonstrates deficiencies in the employee’s performance that are legitimate grounds for concern or criticism.” In this case, Fifth Circuit noted that the employee was caught sleeping on site, was frequently late and left the plant without approval – all of which would support a negative review. Because the negative review was not deemed harassment, there was no timely charge filed with the EEOC, and the employee’s HWE claim was properly dismissed.

It is reassuring for employers that holding an employee accountable for legitimate performance issues, assuming that performance standards are being applied consistently to all, will not be considered harassment.