Performance appraisals have become an annual rite: Human Resources requires them; employees expect them; and supervisors hate doing them. In an employer’s perfect world, managers would be free to evaluate employees’ performances without fear of second-guessing by attorneys; judges would never make “business judgments”; and juries would routinely uphold an employer’s assessment, giving little credence to an employee’s disagreement.
Sometimes that happens, but often it does not. Regardless of whether performance appraisals are an effective management tool, a waste of time, or a harmful exercise — and there is evidence that they can be all of these things — for courts and juries, performance appraisals are often the most persuasive, albeit silent, witnesses in an employment action. Indeed, the Equal Employment Opportunity Commission Feb. 18 proposal to amend regulations addressing the Age Discrimination in Employment Act’s affirmative defense of “reasonable factors other than age” specifically direct attention to performance appraisals for determining whether an employer has acted for legitimate or for discriminatory reasons. Thus, regardless of their intrinsic merit, appraisals treated as a mere pro forma exercise carry significant legal risk. A thoughtful, well-drafted appraisal, on the other hand, can help reduce risk and provide valuable evidence in overcoming challenges to an employer’s personnel decisions.
