Incomplete, inaccurate, vague, and subjective performance evaluations are common fare in many organizations. Unfortunately, they are also the incriminating evidence in any resulting wrongful termination or discrimination case. While no supervisor or manager should give an unproductive employee ambiguous feedback simply to avoid a possible lawsuit, managers must be mindful of the legalities of their performance management practices.

Should a former employee file charges against your company, your performance management reports can either make or break your defense. With that in mind, are your supervisors and managers keeping accurate and detailed performance appraisals for every employee? Would the reports you have on file adequately defend your decision to terminate, transfer, or demote an employee?

The fact is that many evaluators unknowingly distort performance reviews, which could ultimately hurt the company in a legal battle. When you know why such distortions occur, you can take the necessary steps to rectify the situation, practices, and procedures.

1. Inadequate preparation: Supervisors often feel that they have too much to do and insufficient time. Since performance appraisals are neither intellectually challenging nor enjoyable, many supervisors procrastinate doing the paperwork. As a result, the appraisals lack attention to important details such as language and consistency, and they are often void of complete descriptions of the employees’ work performance. Supervisors should plan ahead and take the necessary time to perform and document appraisals.

2. Lack of clear standards: Clear, measurable performance standards are essential for accurate and legally defensible performance appraisals. Objective standards, communicated clearly and consistently to employees, are the only way to ensure that employees understand what is expected of them. Clear standards apply to specific and significant tasks of the position, reflect acceptable or satisfactory levels of performance, are expressed precisely, focus on critical and specific aspects or features of performance, and address both measurable performance criteria (such as production goals) and elements of judgment and initiative.

3. Inconsistency in ratings among supervisors: Employees frequently allege employment discrimination when supervisors reprimand or discipline them for infractions that other employees routinely get away with. Sometimes this occurs with the same supervisor, but more often it is the result of different perceptions among supervisors about what constitutes acceptable performance. Supervisors should clarify performance standards for like jobs to achieve a consensus regarding performance-rating definitions.

4. Rating personality rather than performance: Supervisors may respond quickly or strongly to personality traits, such as aggressiveness, that prevent them from objectively evaluating performance. The appraisal should focus only on actions, accomplishments, and specific instances of unacceptable performance.

5. The “halo effect”: A halo effect occurs when a supervisor gives an excellent employee top ratings in all areas or gives an unsatisfactory employee low ratings in all areas. The halo effect results from the supervisor’s tendency to let a strong judgment in one area color his or her judgment of other behaviors. In reality, poor employees usually have some strengths, just as high achievers have some weaknesses. Job-specific performance standards can minimize the halo effect.

6. Inappropriate time span: Performance appraisals should cover the entire rating period and the employee’s progress from one rating period to the next. Supervisors should address each element of performance, including improvement from the immediately preceding appraisal. Supervisors who refer back to incidents that occurred before the last appraisal are potentially unfair to the employee and risk letting subjectivity into their analysis.

7. The “contrast effect”: The exceptionally good (or bad) performance of one or more employees may greatly distort the evaluations that others receive. While contrasting the relative contributions of a group of employees contributes constructively to the appraisal performance process, the rating of one employee should not shift the ratings for others except in extraordinary circumstances (such as a limited bonus pool).

8. Inadequate observation: Supervisors who are not thoroughly familiar with all aspects of an employee’s performance may feel compelled to complete standardized forms completely. Such supervisors should not conduct the appraisal, as they are often unable to arrange for a sufficient number of observations or to completely review written reports or other work the employee produces. Let supervisors know they can ask for help with appraisals when needed to reduce the risk of subjectivity that is not job-related and assumptions about the employee that are based upon personal characteristics.

9. Overemphasis on uncharacteristic performance: Unusual behavior is often more memorable than typical behavior. Supervisors observing behavior that seems uncharacteristic should make an effort to determine whether it is part of a pattern or is related to a medical problem or disability.

10. Unduly negative ratings: Sometimes supervisors deflate an employee’s performance rating because they believe the employee will benefit from a “push.” Other times they are attempting to subdue a troublesome employee, to use fear as a motivation to improve, to encourage a problem or marginal employee to leave, to develop a pretextual reason for dismissal or discipline, to create a record to justify a discharge, or to “cover up” performance problems of other employees or problems within the supervisor’s department.

11. Inflated ratings: When supervisors are uncomfortable being candid with an employee for fear of discrimination charges, they may inflate the employee’s performance rating. To make the appraisal easier, keep a file of work samples, reports, or information that reflects performance results during the rating period. Other reasons for inflating ratings include: to boost an employee’s spirits or encourage a marginal employee to work harder, to avoid confrontation with a hostile employee or to avoid claims of discrimination, to get difficult employees transferred out of the department, to boost the relative rankings of their subordinates or department vis-a-vis other departments, to keep from revealing the department’s problems to management, or to save time and avoid the level of documentation required to support performance appraisals that might trigger discipline and/or discharge.

12. Subjective language in written appraisals: Even carefully constructed written appraisals may contain language that the courts could misconstrue during a trial. Sometimes assumptions about people based on their personal characteristics invade the appraisal process. Even when the comment is “positive,” if it references gender, age, or other characteristics, it may reveal a mixed motive. Some examples include:


  • Too set in his/her ways;

  • Can’t teach an old dog new tricks;

  • Lacks “energy” or “drive.”


  • Brings a welcome woman’s touch to her work;

  • Uses “unladylike” language;

  • “Effeminate mannerisms” make exercise of authority difficult.


  • Lacks front office appearance;

  • May be embarrassed by negative reactions of other employees and/or customers, suppliers, or vendors.


  • The “chemistry” isn’t right;

  • Communication difficulties due to “detectable accent”;

  • Not a team player.

    When you’re aware of the common performance appraisal distortions, you can implement corrective measures to prevent them from occurring in the future. Educate your supervisors and managers about the legal liabilities their performance management practices could provoke so you can lessen your company’s chances of being sued. The less time your company’s supervisors and managers spend in the courtroom, the more productive they’ll be.

    Eyres is an attorney with over 18 years of experience defending businesses in the courtroom. She is a full-time professional speaker and author. She can be reached at 800-548-6468 or (e-mail).

    Publication date: 08/19/2002