Published Article

Employers’ Year-End Bias Check: Discrimination in Performance Reviews and EEOC Updates

December 29, 2021

It’s the most wonderful time of the year … for year-end reviews and compensation discussions. While these reviews serve an important purpose, if not conducted thoughtfully, they can allow managers to unconsciously reflect biases in their evaluations. Indeed, with new COVID and AI-related guidance from the EEOC in recent months, employers have a lot to consider heading into 2022.

What Risks Do Performance Reviews Pose to Employers?

Oftentimes, supervisors are asked to rate employees based on a generic form or template evaluation. While this format may streamline the review process for HR, it robs the reviewer of having a sincere discussion of what the employee is doing well or where there is room for improvement. In addition, these template reviews open the door for biases to sneak into play. These biases can make people feel less included and may affect how diverse employees are treated in the performance-review process, and in the organization overall.

It’s important to note that you should communicate to employees whether there is any compensation adjustment tied to the performance-review process. The last thing you want is for people to assume that if they have a positive review, they will receive a raise or bonus, if that’s not the case.

How Can Employers Avoid Biases Influencing Their Evaluations?

The first place to start is to coordinate metrics. There’s always going to be a degree of subjectivity to an evaluation via form, but honing in on specific performance analytics and cross-referencing those with job descriptions and review documentation will help managers gain a clear perspective on the nature of the work being done. For example, if an employee is expected to make 15 widgets, and 15 is an acceptable performance, and they made the 15 widgets, but the employee receives a negative performance review, management is equipped to ask follow-up questions based on data. You want to see consistency between performance data and review outcomes. You also want to track for consistency with past reviews, and dig in to any apparent discrepancies.

Next, employers want to be sure they are thoughtful and intentional about the language used in the reviews. Rather than generic check-boxes, managers should craft questions that will encourage supervisors to uncover the answers they need based on the specifics of the role in question. Requiring thoughtful, documented responses will help keep biases in check and keep the quality of the work at the forefront of discussion. Reviews with comments such as “not a team player” or “bad attitude” present an opportunity to dig deeper into the circumstances supporting that remark. Is there a pattern of conduct warranting disciplinary action? Are other employees of similar demographics receiving similar reviews?

It’s also important to ensure proper training for supervisors conducing reviews. Evaluating performance is not an innate process. Gathering objective performance data that is consistent from supervisor to supervisor and employee to employee relies on reviewers operating with an understanding of uniform information and expectations established by management.

Casting a Wider Net: Input From Others

One useful tool for combating bias is calibration: conducting or evaluating employee performance reviews by senior staff members, or a specially selected team, or an outside vendor, to ensure that an equitable process is being followed. Calibration allows for the comparison of performance reviews to the metrics of the diverse groups within your organization, and can ensure that managers are making quality, verified performance evaluations.
In addition to calibration, management can avail themselves of input from other individuals who work with a given employee. In addition to supervisor feedback, input from teammates, counterparts from a different department, clients, and others who regularly interface with that employee may provide a full picture of a worker’s performance.

What Options Are Available If You Need To Improve the Review Process?

To reduce the effect of similar-to-me bias, employers should require specificity in managers’ training. Asking the right questions is critical to generating effective reviews. To that end, employers should provide supervisors the framework for evaluations, but afford them a degree of flexibility to tailor review metrics based on job duties and expectations. Every role will inherently have differing evaluation criteria, so one-size-fits-all approach will shortchange the review process. Focusing on the terms and conditions of this particular job, the behaviors needed to do that job, and how this employee responds in the particular situations they face, rather on personality fit or culture fit, will deliver more useful results.

Often managers want to give employees continuous feedback throughout the year, which definitely has value. Data has shown that assessments are more effective when there’s set criteria or data that managers are consistently working towards. Ensuring that even informal feedback is structured around concrete criteria will minimize the disruption of personal biases. Consistency is key, and when extenuating circumstances come into play, managers need to be conscious that they should either extend the benefit of the doubt to everyone, or no one.

Managers should also be trained on and alert to various biases and assumptions that may come into play. We all have subconscious biases surrounding characteristics from gender identity, sexuality, and ethnicity to socio-economic status, and a host of other factors. We may make assumptions about the personal demands on an unmarried, nonparent employee vs. the demands at play in a parent’s personal life, and even differing assumptions for mothers than fathers, much less trans and nonbinary employees. To the greatest extent possible, we want to minimize the impact of those assumptions and biases in the professional setting, especially in the context of performance reviews.

Year-End EEOC Updates

In addition to the best practices referenced above, the EEOC has recently released guidance that discourages discriminatory practices for 2022. In response to the COVID-19 pandemic, in November, the EEOC updated its technical assistance to cover various employer retaliation scenarios related to the pandemic (such as protection from retaliation for objecting to a company COVID-19 policy). This guidance follows and mirrors OSHA guidance released earlier in the year.

The EEOC also recently announced an initiative to ensure algorithms and AI-based tools don’t perpetuate discrimination in the recruitment, hiring, evaluation, compensation or promotion processes.

As technology, health conditions, and social and professional norms evolve, preventing discrimination in the workplace will remain a priority. Employers should stay abreast of changing regulations and trends in order to encourage the best performance from their employees.

Reprinted with permission from the December 29, 2021 issue of New York Law Journal. © 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.