How To Avoid Successful Lawsuits by
It is a frustrating fact that even poorly performing
employees often win lawsuits for discrimination or wrongful
termination. They often
“I didn’t know what was expected of me;”
“I didn’t know that I wasn’t meeting job
“I didn’t know this awful thing (termination,
demotion etc.) could happen to me.”
How can an employee who is dismissed for sub-par
performance win such a lawsuit? Often,
it is because the supervisor failed to communicate in a clear manner,
or at all, exactly what job standards applied and what the particular
employee needed to do to meet those standards.
Equality of opportunity isn’t the same as equality of
outcome. In the courtroom,
the dismissed employee doesn’t have the burden to prove he would
have succeeded; but rather, simply that he wasn’t given an equal
opportunity to succeed.
Many managers and supervisors are terrified of the
performance appraisal process. It is difficult to convey “bad
news” to an employee who is likeable and trying hard, but just
isn’t meeting performance expectations. It can be even more
difficult to provide criticism to an employee who is neither likeable
nor demonstrating a positive attitude, because the leader fears a
defensive reaction. Still, the most frequent reason for ineffective or
non-existent performance appraisals is the absence of specific,
measurable standards with which to perform a viable evaluation. This
creates business inefficiencies and very real legal risks.
Appraising employee performance with reference to a set
of written standards, which mirror the job descriptions, is a valuable
approach. Standards-based appraisals are an especially effective way
to document that employment decisions, such as decisions to terminate
employment, withhold pay increases, or promote one employee over
another, were made fairly and without illegal prejudice.
Objective standards, communicated clearly and
consistently to employees, are critical. Employees should understand
clearly what is expected of them. Clear standards have the following
Every Position Should Have Performance Standards:
say that written standards cannot be prepared for a position is to say
that the supervisor does not know what to expect of an employee and
that the employee's work cannot be objectively evaluated.
2. Standards Should Cover Specific Positions, Not Broad
Classes Of Positions:
though certain employees may have the same job title, different
standards should apply for these employees if significant differences
in operating practices or working conditions exist. For example, a
clerk typist in accounting and one in public relations would perform
different work, probably in different quantities. Only when the duties
and working conditions of positions are identical should a single set
of standards apply to them.
3. Task/Responsibility Statements Need To Be Written Or
Reviewed Before Standards Can Be Written So That Standards Can Be Set
For Each Task:
task is a major unit of work or significant component of the job. The
task statement should be broad enough to serve as a significant tool
for evaluating an employee's performance, but not so broad that it
becomes burdensome or impossible to develop standards for the task.
It is important to avoid overly broad statements such as
"Does routine clerical work," which may, in the case of a
clerk, describe the entire job. Statements of overall responsibility
do not give enough help in defining a job. In general, statements with
words such as "supervises," "coordinates," or
"directs" probably describe overall responsibilities rather
Overly narrow statements should also be avoided. For
example, "places correspondence in file folders" is only a
sub-task of the major task "maintains correspondence files."
Relatively minor tasks should be omitted. Remember that
what is a major task for one employee may be a minor task to another
employee. For example, the maintenance of correspondence files, while
a significant task for a clerk, is only a minor task for a civil
For ease in rating, most jobs should be described in
terms of four to eight major tasks.
4. Standards Should Apply To Specific, Significant Tasks
Of The Position:
the employee's responsibilities are expressed in vague, general
language, it will be difficult ‑ perhaps impossible ‑ to
write clear, meaningful standards for the job. Wherever possible,
tasks should be expressed in concrete terms that describe definite
actions that the employee takes. Also, standards should normally not
be written for temporary or unusual responsibilities or minor tasks,
since this would make the standards too long and complicated, as well
as difficult to communicate and administer.
5. Every Task Should Have One Or More Performance
Standards By Which Accomplishment Of The Task Can Be Judged:
should specify what level of performance is expected in relation to a
given task, that is, what the employee is expected to do and how well
he or she is expected to do it. Performance standards should serve as
benchmarks that tell the HR professional and employee when and under
what conditions the employee's performance of the task is
satisfactory. "Satisfactory" means a "good"
level of performance, reflecting what an employee in that job can
normally be expected to do.
6. Standards Should Reflect A Fully Acceptable Or A
Satisfactory Level Of Performance:
should be attainable and should reflect what is expected of a fully
trained and competent employee. Standards must be high enough for the
work unit to accomplish its objectives and low enough for competent
employees to reach them.
Standards Should Be Expressed Precisely: The
more precisely standards are stated, the easier it will be to evaluate
performance and give employees guidance on what is expected of them.
For example, "Responds to requests for estimates in accordance
with established deadlines" is not as precise as "Responds
to requests for estimates within two days of receiving a
request." Vague or general words or phrases, such as
"reasonable," "seldom," or "rapidly,"
should be replaced with more precise terms whenever possible.
Read other articles and learn more
Patricia S. Eyres.
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