Best Practices for Achieving Talent Success Maturity

A Checklist for Nondiscrimination Compliance in Performance Reviews

With insight from

Andy Porter

Chief People Officer at Broad Institute

Andy Porter is the chief people officer at the Broad Institute of MIT and Harvard. There, he leads the Human Resources function and is responsible for creating an organizational environment that fully enables the success of the Broad mission by attracting, developing, and retaining top talent.

Porter brings over fifteen years of experience to the job, most recently as Vice President of Human Resources and Organizational Development at Merrimack Pharmaceuticals. Prior to joining Merrimack, he served as head of Human Resources at Dyax Corp, worked for several years as an independent consultant within the biotech and pharmaceutical industries, and held roles in Human Resources at Harvard-affiliated hospitals. Additionally, Porter has spent time outside of his full-time roles teaching as an adjunct professor at MCPHS University, and sharing his views on organizations and talent management as a contributor to the blog “Fistful of Talent.”

Porter holds a B.S. degree in organizational psychology from Bridgewater State University, and an M.S. in organizational development from American University.

Who it’s for:
HR and all managers
What you’ll get:
A checklist to highlight common compliance issues in performance reviews
Why you need it:
To ensure performance reviews are in compliance with nondiscrimination laws and regulations
When it applies in the talent success process:
Before the review is presented to the employee

Performance Reviews: A Compliance Best Practice

Performance reviews play a central role in developing your talent and documenting the reasons for deciding whether to give a particular employee a raise, promotion, or to terminate them. When performed correctly, the paper trail they create will help defend these decisions. But, they can also present traps for the inexperienced or careless. This article discusses some of the main considerations for nondiscrimination compliance and provides an easy-to-use checklist to share with managers or for HR staff to use as a step before presenting reviews to employees.

Nondiscrimination Compliance Before the Performance Review

To ensure that you’re meeting compliance in your performance review, you should consider the following areas of potential discrimination, as pointed out by the U.S. Equal Employment Opportunity Commission: *

Race
Color
Sex
National origin
Religion
Disability
Age
Other bases (e.g., gender expression, sexual orientation, veteran status) that may be relevant based on state or local laws, or are culturally important for your company

There are plenty of discriminatory hazards to be aware of before you begin to fill out your performance review. That’s why it’s best to keep your review objective and provide valid reasoning behind your reviews.

What You Should Assess in Your Performance Review

Keeping your review objective and measurable is always a best practice. Review your employees based on:

Key work responsibilities
Results and goals achieved
Behavioral competencies
Areas for development

Andy Porter

Andy’s Take

When it comes to difficult performance reviews, the context around what’s being said and the face-to-face conversation is critical. I often go into these conversations thinking of them as multiple conversations to unfold over time. Employees need to see that you have their backs and that you are willing to make the investment to help them work on their weaknesses.

— Andy Porter, Chief People Officer at Broad Institute

Be a Coach, Not a Judge

Giving critical feedback is crucial to the company and the employee, but it’s also the easiest and most likely place where a poorly worded statement or misunderstanding can spiral into more serious conflict. As a manager, you can reduce the risk of problems while building a more positive and transparent relationship with your employees by making sure they see you as a coach, rather than a judge.

The difference between the two personas is fundamental: A judge picks the winners and losers of a competition, while a coach’s job is to help and inspire each participant to give their best performance. Sometimes that means giving negative feedback: A coach who never does might be well liked for a while, but their players probably won’t win many medals, either. To give tough feedback effectively, focus on the following two things.

Critique by Example

Telling a salesperson, “You don’t know how to close,” is a subjective statement — even if the employee failed to make quota, they may think it was due to other causes, like a weak territory or bad luck. It can also easily turn personal. The sense that “my supervisor has it in for me” has been the start of many a lawsuit.

Instead, focus on examples of when the employee demonstrated the behavior you wish to correct: “Let’s talk about closing — remember the Sterling account, where we spent three months in contract negotiations and then didn’t get the deal?” By focusing on specific examples, not only do you reduce the element of subjectivity, you also “show your work” to the employee, so to speak, giving them a fair opportunity to rebut your evaluation, and possibly share new information that changes your mind.

Match Don’ts with Do’s

Great coaches don’t just yell at their players to do better next time, they show them how to improve. If you’re planning to give an employee an example of something they did poorly or wrong, make sure you also have actionable advice on things they can do to improve. “We all want every deal to close, but sometimes it’s important to step back and make sure we’re not wasting time. If it’s been a month and we don’t have a contract yet, call the decision-maker and ask if they’re still serious.”

Managers Don’t Have to Go It Alone

If your managers find comfort in numbers for performance reviews, they always have the option to have multiple people review with them. As a SHRM study points out, “With multiple raters, the manager is taken out of the role of ‘sole judge and evaluator’ and can assume a greater role as a performance coach and helper.” * Having multiple opinions on a review will reveal trends in thinking and ensure a more objective, fully formed performance review.

Ensure That HR Assesses the Review

It’s good practice to have a second pair of eyes on any document. This is especially true if the document could cause a potential HR violation. Make sure HR assesses all performance reviews before the documents are filed. If your department has any feedback regarding discrimination, make sure your managers review it and take it seriously, as it could save your organization from a difficult situation.

Nondiscrimination Compliance During the Performance Review

Allowing employee feedback during the performance review is critical to the employee’s development and understanding whether they align with the feedback. Have the employee write a self-assessment, and have the manager and any additional reviewers write their assessments, as well.

Your HR department should then review and approve or reject the managers’ assessments. Occasionally, a department head can review the assessments before or after HR and approve or reject the reviews, as well.

From there, managers should conduct their reviews with the employee. The employee can accept the review or submit a rebuttal to your HR department. Your HR department can then review the rebuttal and, if necessary, work with the manager and other reviewers to revise the review and present it again to the employee.

The best way to avoid any discrimination or problems is to evaluate the performance against the deliverables or job outcomes. You’re not evaluating the person but their results. Those results can come from behaviors, work efforts, skills, knowledge, and and other factors.

Nondiscrimination Compliance After the Performance Review

If any issues arise with the employee during or after the review, make sure the manager knows to follow up with your HR department and make them aware of any issues. Encourage the employee and manager to send your HR department any feedback they think of after the meeting, as well.

Some managers may even check in a week or so after a performance review to see if the employee has any more feedback regarding their performance review. This ensures that the managers and your HR department close the feedback loop and answer any remaining questions your employee might have.

Putting It All Together: Sample Nondiscrimination Performance Review Checklist

Below is a sample nondiscrimination performance review checklist.

Using a checklist for your nondiscrimination performance review compliance ensures that you consistently apply talent management best practices.

An Ideal Performance Appraisal Is Valid, Consistent, and Objective

Unfortunately, those criteria are not commonly met. This happens for a variety of reasons, from unclear terminology to managers not grasping the role they’re evaluating. You want to make sure you’re not entering into legal waters, however, and are professionally administering any performance appraisals or reviews. You must avoid performance appraisal elements rooted in the following:

Age: An employee can claim discrimination based on age via the Age Discrimination in Employment Act (ADEA).
Retaliation: This typically occurs when a supervisor gives a negative performance evaluation to “get even” with an employee for a reason unrelated to job performance. Title VII prohibits employers from retaliating against employees who oppose any unlawful employment practice under Title VII, or who report such practice to the Equal Employment Opportunity Commission (EEOC) or equivalent state agency.
Any Title VII Discrimination: Civil Rights Act, Title VII, prohibits employers from discriminating against any individual on the basis of race, color, religion, sex, or national origin. State laws may include additional groups protected from discrimination in the workplace.
Defamation: Common law defamation consists of a false statement about a plaintiff communicated to a third party and that tends to harm the plaintiff’s reputation or standing in the community. This is not as common in a legal context because courts tend to view performance appraisals as integral to business operations and management standards, so they’re usually not inclined to hold a company up for libel via something said on a performance appraisal.
Negligence: An employee may have a claim based on an employer’s negligence in conducting, or failure to conduct, a performance evaluation. If the employee is not given a regularly scheduled evaluation, the employer may be held liable for negligence.
Disability Discrimination: Employers are required to make reasonable accommodations to permit disabled employees to do their jobs. Performance appraisals must be applied to all employees, including disabled employees, on a uniform, nondiscriminatory basis.