ALP: One of my employees is not performing well, but I am afraid to address the performance issues...

February 15, 2008

One of my employees is not performing well, but I am afraid to address the performance issues because he recently made a claim of discrimination. What can I do?

It is illegal to take adverse action against an employee because the employee engaged in activity protected by state or federal law (such as making complaints about discrimination or harassment), so many employers are flummoxed about how to deal with employees after they have engaged in such protected activity. The concern is that any discipline or corrective action will be construed as being retaliatory. However, while it is illegal to retaliate against an employee because of he or she made a complaint, the fact that an employee did so does not give that employee an exemption from meeting the company’s legitimate expectations.

Two concepts that will help you avoid the retaliation trap are objectivity and consistency. First, performance concerns should be addressed with the employee using an objective, fact-based approach. The more subjective the basis for the discipline, the easier it is for the employee to claim that the discipline is retaliatory.

Second, you should consider whether other employees who have not made claims receive the same level of discipline for the same performance concerns. If the company is inconsistent in applying its rules and expectations, the employee can use that inconsistency to argue that he or she was singled out because of the complaint.

HR professionals are often teased by others in the organization because of their insistence that all employee performance concerns be documented, but this situation is one of the main reasons why the professionals insist on that approach: a failure to document up front makes it much more difficult for the company to subsequently show that it consistently enforces its rules and expectations.

In fact, the failure to promptly address employee performance issues when they occur is often the cause of the problem. If a supervisor fails to require the employee to abide by certain rules before the employee files a claim, it is extremely difficult for the company to credibly take the position that those rules are important after the complaint has been made.

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