What U.S. Laws Relate To Anti-Discrimination, Employment Equity, and Performance Evaluations?

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The following laws and statutes are related to the various laws in the USA that relate to performance reviews, and how they might be used to defend against, or support the complaint of an employee lodging an anti-discrimination law suit:

Summary of Selected Laws and Legal Principles That Relate to Performance Appraisals and Potential Liability for Employment Discrimination

Law or

Legal Principle

Summary of Law or

Legal Principle

Relationship to Performance Appraisals and Potential Liability for Employment Discrimination

Disparate Treatment

Intentional discrimination; improper distinctions among individudals based on protected status (e.g., age, race, sex)

Results of invalid or subjective performance appraisals may be used to justify improper employment decisions that are based on discriminatory motive or bias

Disparate (Adverse) Impact

Unintentional discrimination; arises from employment practices that appear neutral but adversely affect those with protected status

Invalid appraisal practices or absence of safeguards can operate to exclude qualified protected class members from employment opportunities more often than non-members

Title VII of the Civil Rights Act of 1964 (Title VII)

Outlaws discrimination based on race, color, sex, religion, or national origin

Provides protection against use of appraisal procedures and results to perpetrate discrimination


Fair Employment Practices Acts

Provides protection similar to Title VII; varies by state

Similar to above

Equal Pay Act of 1963

Prohibits gender-based differences in pay for equal work, subject to limited exceptions

Appraisal results can be used to invoke and justify exceptions (e.g., merit- based pay distinctions)

Civil Rights Act of 1991 (CRA 1991)

Allows jury trials, compensatory and punitive damages in discrimination cases; alters burden of proof and other technical aspects of some cases

Reduces plaintiff’s burden of proving that particular practice of employer (e.g. performance appraisals) caused discrimination if practices are incapable of separation for analysis

Age Discrimination in Employment Act (ADEA)

Prohibits employment discrimination based on age of 40 or over

Provides protection against use of appraisal procedures and results to perpetrate age-based discrimination

Americans with Disabilities Act (ADA)

Prohibits employment discrimination based on disability

Limits appraisal criteria to essential job functions and requires reasonable accommodation as to how performance is appraised

Rehabilitation Act of 1973

Similar to ADA; applies to federal contractors

Similar to above


From Current Legal Issues in Performance Appraisal Stanley B. Malos, J.D., Ph.D. http://www.cob.sjsu.edu/facstaff/malos_s/bookchap.htm


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Bacal & Associates was founded in 1992 by consultant and book author, Robert Bacal. Robert's books on performance management and reviews have been published by McGraw-Hill. He is available for consultation, training and keynote speaking on performance and management at work.


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  • Performance management can be the lever for improved employee engagement.
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