Just yesterday, Business First and McBrayer sponsored the second part of a two-part seminar entitled “Lessons in Workplace Liability.” Amy D. Cubbage and Cynthia L. Effinger, McBrayer Employment Law attorneys, explained to attendees how job descriptions and performance evaluations can be used as powerful legal tools to limit liability for discrimination-based claims. If you were not able to attend the seminar, but would still like a copy of the materials, contact McBrayer’s Marketing Director, Morgan Hall at firstname.lastname@example.org or 859-231-8780. We have also summarized some of the information shared by the presenters below.
McBrayer: What’s the big deal with a job description? Why is it so important?
Cubbage: Job descriptions have always been an important HR component. A good job description helps an employer through the entire hiring process – from recruitment to setting compensation levels to assessing training development needs. A great job description also comes in handy later – when it is time to assess the employer’s performance and make decisions based on that performance.
McBrayer: How can a job description aid an employer in the wake of a discrimination claim?
Effinger: Let’s imagine an ex-employee is making a claim that his previous employer violated the Americans with Disabilities Act (“ADA”) by terminating him after he became disabled. The ADA states that a qualified individual with a disability is “one who can perform the essential functions of the job with or without a reasonable accommodation.” If he could not perform the essential functions of the job without an accommodation, then terminating his employment was not in violation of the ADA. What are the “essential functions” of the job? These should be outlined in your job description, which can then be used as evidence to show a lawful termination.
McBrayer: What is one of the biggest no-no’s you see with employers’ job descriptions?
Effinger: Too often, an employer will describe the kind of employee they are looking for instead of describing the qualifications. For instance, stating that you are looking for a “young and energetic” employee can be unlawfully discriminatory toward older candidates. What are you really looking for? Stating that you want someone who is “willing to learn” or “available for training” can accomplish the same objective.
McBrayer: Any practical tips for someone writing a job description?
Cubbage: A job description is always subject to change. It should be a living document – revised when necessary. Be sure to include a disclaimer that states (1) the description is subject to change; (2) management retains the right to assign or reassign duties at any time; and, (3) the description does not limit tasks that can be assigned. Date the document and review it for accuracy each time the job description is posted for an opening.
McBrayer: Performance reviews are often considered a necessary evil – they are not something typically met with enthusiasm. Why are they important?
Cubbage: I think performance reviews are an underutilized tool and can be a very positive thing, for both employees and management. Importantly, performance reviews can serve as an objective reason for making personnel decisions. In the event a discrimination claim arises, having a documented reason for any adverse action is extremely important. In addition to that, performance reviews, if done properly, can be a motivator and good for morale.
McBrayer: What should employers remember when it is time for employee evaluations?
Effinger: Avoid saying anything that sounds like you are singling someone out based on protected characteristics (i.e., race, religion, age, gender, disability, marital status, pregnancy or sexual preference). Some examples might include, “You let your pregnancy really interfere with your work hours,” or “You just are not old enough to understand how things work around here.” Comments like these, even if made with no ill intent, may be viewed as discriminatory if litigation results.
Cubbage: In addition to that, it is important to note that employee evaluations are meaningless if they are not truthful. Keep it professional, but candid. If a review is sugar-coated, it prevents the employee and the organization from improving. A false review could actually hurt an employer if an employee uses it in an employment action to show that they were a “good employee.”
Thanks to Business First for co-hosting the event and to our presenters! If you have questions or would like to know more about how a McBrayer attorney can speak to your business or group, give us a call today. Don’t forget about our next employment law seminar in October! More details on it can be found here.
Cynthia L. Effinger is an Associate of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger can be reached at email@example.com or at (502) 327-5400, ext. 316.
Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or firstname.lastname@example.org.
This article is intended as a summary of state and federal law and does not constitute legal advice.