Be Accurate With Those Performance Reviews!


A recent case reminds employers that performance reviews are compelling evidence – both positively and negatively – in employment discrimination cases.

In Cowgill v. First Data Tech., Inc., the call center employee had back issues for which she required leave under the Family and Medical Leave Act and the Americans with Disabilities Act. During her nine years of employment, she routinely received above-average performance reviews. However, she was terminated following two customer call issues. She then filed suit, alleging disability discrimination, among other things.

In order to bring a claim of disability discrimination, an employee must establish that (1) she was disabled; (2) she was discharged; (3) she was fulfilling the employer’s legitimate expectations when discharged; and (4) the circumstances of the discharge suggests unlawful discrimination. The trial court threw out her lawsuit, finding among other things that she had not met the employer’s legitimate expectations.

On appeal, however, the U.S. Court of Appeals for the Fourth Circuit reversed the trial court’s ruling, stating, “If an employer genuinely believed that one of its employees was performing poorly on metrics the employer perceives as important (as First Data claims here), it seems unlikely that it would rate the employee’s performance highly.” Based on these evaluations, as well as some other factual disputes, the Fourth Circuit found that a reasonable factfinder could conclude that the employee had been subjected to disability discrimination.

So the lesson here is that managers need to ensure that performance reviews accurately reflect the employee’s actual performance. Many times managers don’t take the time to complete these carefully, or prefer to avoid the hard task of dealing with an employee’s performance concerns. Those evaluations can certain come back to bite the employer, as was the case here. Conversely, a well-considered and thoughtful series of performance evaluations that note continuing performance issues can be powerful evidence to counteract an employee’s assertions of excellent – or even adequate – performance.