Die Annual Performance Review Die

Client calls.  Asks if they can fire Jerry for performance reasons.  The first (seriously, the very first) question I ask is, “what do Jerry’s performance reviews say?”  Experience has taught me that performance-related terminations usually have a homegrown enemy – the employee’s previous annual performance reviews.  What if we could eliminate the enemy by doing it better?

No one likes performance reviews.  Employees lose sleep the night before a review meeting.  Managers hate completing all the forms and fear having uncomfortable conversations.  HR turns into nagging mother-in-law types trying to track down managers to get all the forms turned in so that performance increases can be made.  No one likes this.

Performance reviews are rarely done well.  Most typically, the reviews are so vague they are meaningless.  They focus only on recent events and not performance over the entire year.  They are chockfull of bias.  Sometimes, a manager pretends he lives in Lake Wobegon where all the employees are above average.  Because we in HR are focused on handling the next fire, we don’t have time to push back on managers who do not do performance management well.  So, a poorly completed review gets stuck in a personnel file until I ask about it when the client wants to terminate.

Even when the termination is completely warranted and lawful, it’s the performance review that hurts.  The termination is going to have to get explained.  I’m confident that I am not the only employment attorney stuck explaining why an employee was terminated for bad performance just weeks after a positive review.  (We attorneys should form a secret society complete with a secret handshake.)  Our explanation is often couched in terms of a rapid performance decline as explained by a manager who “wanted to be nice” in the review but had observed poor performance that resulted in a lost customer, order, and so on.  The explanation by both the attorney and the manager is expensive for the company.

These are just a few of the reasons I want the annual performance review to die.  I’m not advocating for the end of performance management – quite to opposite.  I want more frequent, meaningful reviews for everyone.  Here’s my wishlist:

  • Conversation coaching.  Managers need to have difficult conversations with employees about performance.  Most managers, and particularly new managers, have not learned how to have these difficult conversations.  HR pros are conversation coaches, so we need to coach our managers on how to have these conversations.  Or, we need to get our managers the training and skills necessary.
  • Frequent discussions.  I love one-on-ones when they’re done right.  Brief meetings that discuss how projects are progressing that also discuss how the employee is doing are vital to successful businesses.  With this, managers get a sense of what roadblocks they can remove, and employees get critical feedback on how to do better.
  • Transparency.  People need to know how they’re doing.  Managers need to tell them.  Use examples.  Explain how things can improve.  Show.  If employees know where they stand, they may be able to understand why you’re firing them and not believe it is for some unlawful reason.
  • Recognize.  It isn’t just poor performance that needs to see the light of day.  Good performance does too.  Managers need to know how to champion those performers with potential as well as coaching those who just haven’t meet expectation quite yet.
  • Documents.  (Insert collective reader sigh here.)  Yes, feedback discussions should be documented.  I don’t care you document provided you document and I can get it later when we need it.  You can use the functionality of your HCM or you can have managers email themselves brief synopsis of each conversation.  With the conversation coaching, coach managers how to document as well, including how to remove references to protected class status, leave use, or other items that could get an organization in trouble.

Employees deserve to know how they are doing.  More importantly, they want to know how they are doing.  That’s what a great performance management process can do – get employees what information they need to do their jobs well so we can do our business well.

 

Photo by Tim Gouw on Unsplash

 

 

Sexism is Unlawful Too

Did you know that sexism is against the law all by itself?  Individuals can be sexist without sexually harassing someone?  Much of the #MeToo has focused on the ravages of sexual harassment  #TimesUp has focused a bit differently, focusing on the lack of advancement of women and wage gap issues.  This distinction is important.  While conduct that could constitute sexual harassment is often included in a sex discrimination cases, sexism by itself is also against the law.

Title VII’s prohibition on discrimination “based upon sex” includes many things (and arguably more things).  This “because of sex” provision in the law makes both sexism and sexual harassment unlawful.  It is just as unlawful to engage in sexist behavior as it is to sexually harass someone.  Both are demeaning, discriminatory, and dastardly.

Let’s start with sexual harassment.  Under the law, sexual harassment can be:  (1) quid pro quo which conditions employment (or advancement) on sexual favors or enduring sexual conduct; or (2) unwelcome conduct or comments that create a work environment that is intimidating, hostile, or offensive.  (We’ve dealt with welcomeness in another post.)  Often, sexual harassment cases include sexual touching, like sexual assault, but they don’t need to.  Frequent comments about someone’s sex life or sexual organs (including breasts) can create a hostile work environment.  Moreover, sexual harassment can be unlawful even if it has nothing to do with sexual desire.  It only has to do with sex and/or sexual stereotypes.

Plain, old-fashioned sexism can also cause a hostile work environment that is unlawful under Title VII.  Sexism is unlawful when enduring the offensive conduct or comments is a condition of employment or the conduct or comments are severe or pervasive enough to create a work environment is intimidating, hostile, or offensive.  Sounds familiar, right?  It should.  Yet, sexism doesn’t need to have anything to do with the act of sex – just a person’s sex.

Take for example demeaning comments like “A woman’s place is in the kitchen,” “Women should always be barefoot and pregnant,” “Grow a pair” or (my favorite excuse for derogatory behavior) “Boys will be boys.”  These comments are designed to demean women.  Period.  When these comments are pervasive (a/k/a happen a lot), they create a work environment that is hostile to women and unlawful.  When the comments are paired with conduct, such as only assigning men to do lifting tasks or segregating the sexes to handle particular work, the employer can (and should) be on the hook for discrimination.

These derogatory comments are often coupled with other signs of sexism.  This includes disparities in pay, lack of advancement, and even underrepresentation of women throughout an organization.  All of these need to be tackled even though they’re hard.  And, all need to be tackled even if no allegations of sexual harassment exist.

When an HR pro gets a report of sexism, she should treat it just as she would a report of racism.  Could the comments be demeaning to women?   Could the comments be offensive?  Could the conduct be an attempt to separate employees by gender?  Are other issues – like pay and representation – affected by sexism?  The question of whether any sexual activity – comments or conduct – occurred does not need to enter into the analysis unless it was reported too.  Just because sexual behavior is not included doesn’t mean the employer gets off scot-free.  Sexism is just as unlawful all by its lonesome.

 

Photo by Giacomo Ferroni on Unsplash