Employee Performance Rating Systems: Avoiding and Defending Against Discrimination Claims, WARN Act Violations

Implementing Objective Processes, Record-Keeping Systems, and Communication Protocols to Mitigate Disparate Impact and Treatment Claims

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, October 4, 2016

Recorded event now available

or call 1-800-926-7926
Course Materials

This CLE course will provide guidance to employment counsel for avoiding discriminatory conduct when designing and implementing performance rating systems and/or using employee performance ratings in employment decisions. The panel will discuss best practices for employers to avoid or defend claims of disparate treatment, disparate impact, retaliation or Worker Adjustment and Retraining Notification Act (WARN Act) violations when using performance ratings as a part of hiring, promotion, termination or layoff decisions.


The Feb. 2016 lawsuit against Yahoo by a former male employee alleging Yahoo’s performance rating system has a disparate impact on male employees is a stern reminder to all employers to closely examine their performance rating systems to discern potential disparate impact in their design and implementation. Counsel to employers should examine and weigh in on how employee ratings factor into hiring, promotions, terminations or layoffs.

Because performance rating systems and employee reviews involve subjective factors, they can easily cross over from neutral to discriminatory when used to support decisions regarding hiring, promotions or termination. Objective processes, solid recordkeeping and clear communication protocols are key to minimizing the legal risks. When performance rating systems are used to displace workers as a part of a mass layoff, counsel to employers must ensure that systems align with the requirements of the WARN Act.

Employment counsel must provide employers with guidance in designing and implementing performance rating systems and using performance ratings in a manner that minimizes the employers’ exposure to disparate treatment, disparate impact or retaliation claims, or WARN Act violations.

Listen as our authoritative panel examines the legal risks surrounding employee performance rating systems and provides strategies for counsel to help minimize employers’ liability exposure and defend claims.



  1. Latest legal developments regarding employee performance rating systems
  2. Best practices for designing and implementing performance rating systems
  3. Best practices when using performance ratings in employment decisions
  4. Strategies for defending disparate impact, disparate treatment, retaliation claims and WARN Act violations related to performance rating systems


The panel will discuss these and other key issues:

  • What best practices should employers adopt when designing and implementing performance rating systems that will withstand employee challenges?
  • How can employers minimize the risk of disparate treatment, disparate impact or retaliation claims when using employee performance ratings in hiring, promotion and termination decisions?
  • What steps should employers take to ensure compliance with the WARN Act when using employee performance ratings as a part of layoff decisions?


Raanan, Hanna
Hanna B. Raanan

Of Counsel
Ogletree Deakins Nash Smoak & Stewart

Ms. Raanan represents clients in complex wage and hour litigation, involving claims for employee misclassification,...  |  Read More

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