Performance Improvement Plans Are Inherently Discriminatory

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide, where I tell you what your employer does not want you to know about and more. Today's episode we're going to talk about the performance improving plan and how they're inherently discriminatory. When managers issue pips with assertions of poor performance, not based on fact, but more on subjective conclusions, and then set unreasonably high goals on equal to other employees. The system is rigged for failure, abuse, and discrimination from the start. PIPs have been trumpeted around the employer sandbox for years to control employees and former to fence to future litigation. pips do not improve employee performance, but only create employee dissatisfaction and fodder for articles like this one. We've written about how abusive pips are and what employers can do to beat them in our website. As an employment attorney and litigator I've access to legal databases containing nearly every decision from courts around the country. I went searching for cases sessions to support the above conclusion that pips are inherently discriminatory. Well, I found cases where the employees were unable to demonstrate discriminatory intent and last, I was also able to easily locate cases of arbitrary pips designed to discriminate. The following cases are recent examples of employers using arbitrary and discriminatory pips against employees. I will let you judge for yourself why pips are inherently discriminatory. from good to bad performance and the overt racial tip example. Audrey Phillips, a black woman was hired by United Airlines as an information technology project manager in September 2017, reporting to her boss Jeffrey skeins. In mid 2018 skeins gave Phillips a performance evaluation stating she was doing a great job managing the project team and her it counterparts. At the end of 2018 skeins gave Phillips another review and rated her as partial meets expectations. skeins, then place Phillips on a pip by 2019. Scans terminated Phillips for not meeting her goals. I will state this as the most common set of facts we see in our client cases in this office, the employee starts out performing well receives an excellent review. And then a mysterious change occurs resulting in the PIP being issued, then followed by a termination for cause. Phillips survive summary judgment based on the following pertinent facts. skeins fail to hold two other Asian employees to the same standard of performance, even though those two employees clearly had performance issues that negatively impacted Philips his performance, but they were not placed on a pip. Finally while on the PIP, a pip mentor, and I assume a manager here advises Philips, quote on how to be less black and to avoid culturally offending skeins. I checked the court docket and the case appears headed to trial. As settlement discussions failed last fall. I will caution that this case is unusual as direct statements of bias exists in relatively very few cases. The majority of cases are proven by asserting circumstantial evidence, the retaliatory PIP example. The next example is also a common case we see in our offices. June Preston, was hired as an executive sales representative at Eli Lilly and Company in April 2017. Throughout 2018, Preston and others made repeated complaints to Chrissy Hoffman, the district manager about the demeaning conduct of male Lily employees, but their concerns went unaddressed. Preston felt bullied and can kinda send it by mail employees, but eventually stopped complaining too often because she felt based on our prior complaints that hoffen was unresponsive. Preston, believe that hoffen favored male employees. On December 7 2018, Preston received a negative review from Hoffman, and asked her to identify if there was a problem with their performance, often assured her that there was not. About a month later, Preston was denied a position for which she expressed interest. In February 2019, Hoffman complained to Preston that she was trying to throw her coffin under the bus because hoffen managed the boys club, Hoffman express the Preston had a negative attitude, and was insufficiently supportive of other team members during an award ceremony. Just over a week later, Preston learned for an employee relations representative that Hoffman had complained to employee relations about precedence insufficient support for other team members. In reality, we see this a lot. The supervisor complains to HR about the employee in order to start investigation and build a defense in case the employee sues the employer pressed and then filed an internal complaint with human resources that she was being retaliated against, for formerly complaining about sex discrimination under Hoffman on April 9 2019. Coffin place pressing on a pip precedent alleges that the tip was not based on an objective of assessment of fair performance. Rather, it was in retaliation for presents complaints about sex discrimination in Hoffman's district. The court denied the employers motion to dismiss based on precedence allegations. It is unclear from the fact pattern if Preston was terminated after the PIP, courts routinely state that pips are not adverse employment actions. However, in this case, the courts routinely state that pips are not adverse employment actions. However, in this case, the court ruled that the PIP could be an adverse employment action if it carries with it immediate, albeit non economic consequences that in and out themselves go so far as to materially alter the terms and conditions of employment, the fictitious PYP example. The third example involves Andrea summers, an African American woman, who worked as a nursing assistant in the neonatal intensive care unit at the Children's Hospital Philadelphia for over 20 years, until her termination on November 17 2020. Somers allege her termination was because of her race and in retaliation for reporting two of her white female supervisors to the employers compliance department for inappropriate conduct directed at her. Specifically, she accused one manager for communicating with her in a disrespectful manner, and falsely accusing summers of delaying delivery of a patient from one floor to another. Summer's also complained about another MIT manager, accusing summers of taking unauthorized work break. Summers alleges that after she made these reports, her supervisor began to interact and speak to summers in a condescending manner. Unlike the way she interacted with white nursing assistants. Summers further states that her supervisor continued to mistreat summers in issued her three unjustified disciplinary action reports in October and November of 2020, for infractions, summers did not commit. Due to the second report, Miss Summers was placed on a performance improvement plan and was required to enter chops Employee Assistance Program, attend five sessions of company sponsored therapy and meet with her supervisor every other week. Following the third disciplinary report chop terminated Miss summers implement. The court denied the employers motion to dismiss based on the following. Plaintiff does allege some facts which must be taken as true when viewed in the light most favorable to the plaintiff plausibly established entitlements relief. For example, Miss summers, please that her supervisor spoke and interacted with her in a condescending way that was different from how she interacted with plainness white peers. In addition, Miss summers alleges that she was reported for violating a variety of defendants policies when she did not in fact commit any of the infractions. As a result of these false discipline reports, she was suspended from work for over a week placed on performance improvement plan, and compelled to attend additional counseling sessions and meetings and ultimately terminated. We often see examples of false accusations and our client cases like the one that summers experienced that she committed acts she never committed. I included this case for exactly this reason. In this case, the employer just made up the fictitious accusation in the belief that Summers would never challenge them, or they were just arrogant, arrogantly biased towards her employees face with this nonsense must file a written rebuttal to set the record straight. Allah will not change the employers decision to issue the PIP or terminate. It will help later in the severance negotiation process and ultimately in the litigation of the case. If you'd like more information about dealing with performance improvement plans you received, please contact Carey & Associates PC at info@capclaw.com. Have a great week. Talk to you soon.