More than a box to check: subjective criteria’s role in performance evaluations

Employers sometimes find themselves in the position to take adverse employment action against employees who perform poorly in one or more aspects of their jobs. Yet doing so can be problematic when criteria used to evaluate certain aspects of an employee’s performance are inherently subjective, especially if the employee performs strongly in some objective areas like, for example, total sales numbers. A recent employer-friendly case from the U.S. 5th Circuit Court of Appeals (which covers Louisiana, Mississippi, and Texas) demonstrates that documenting performance issues, including an explanation of subjective deficiencies, is an important tool to defend against discrimination claims.

Background

Grace Owens, an Asian woman, began working for a medical company named Aerocrine in 2010 and was promoted to regional sales manager three years later. In 2015, Circassia Pharmaceuticals acquired Aerocrine and kept her as an employee.

While working for Circassia, Owens was supervised by a senior vice president and, later, also by an area sales director, both white men. In performance reviews they conducted (an end-year review for 2016, a mid-year review for 2017, and an end-year review for 2017), she was rated a 3 out of 5 overall.

Each review noted Owens needed improvement in “team development.” The reviews offered further explanation: