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Posted By Sirmabekian
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2026
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Quick Summary
Performance reviews are meant to give employees honest, constructive feedback about their work, but they are also a point where bias and retaliation can quietly surface. Employees have the right to be evaluated on legitimate, job-related criteria, free from discrimination based on protected characteristics and free from retaliation for activities like reporting harassment or requesting accommodations. Knowing what protections apply during a review helps employees recognize when a negative evaluation reflects genuine performance issues rather than something unlawful.
A performance review should reflect an honest assessment of an employee’s work, but reviews are also one of the more common places where employee rights performance review issues arise. A sudden drop in ratings, vague criticism that was never raised before, or a review that follows closely on the heels of a complaint can all be signs that something beyond legitimate performance concerns is at play.
At Sirmabekian Law Firm, we help employees understand what protections apply during this process and when a review has crossed into unlawful territory.
The Right to Be Evaluated on Legitimate Criteria
Employers are generally free to set their own performance standards, but those standards must be applied consistently and cannot be a cover for bias.
An employee is entitled to be judged on actual job performance, not on factors such as race, sex, age, disability, religion, or other characteristics protected under the California Fair Employment and Housing Act.
Protection From Retaliatory Reviews
If an employee recently filed a harassment complaint, requested medical leave, reported wage violations, or engaged in another legally protected activity, and their review suddenly turns negative without a documented history of performance problems, that timing can support a retaliation claim.
Employers are prohibited from using the review process to punish employees for exercising their legal rights.
Access to Documentation
California employees generally have rights concerning access to their personnel records. Depending on the circumstances, these records can include performance evaluations and other documents relating to an employee’s performance or employment history.
Reviewing past evaluations can help an employee identify changes in how their work is being characterized. For example, a sudden shift from consistently positive assessments to serious criticism may be important if the employer does not explain the change or identify specific performance problems.
Keeping personal copies of evaluations and other employment-related records can also help employees establish a clear timeline if a dispute later develops.
The Right to Accurate, Job Related Feedback
Performance criticism should relate to the employee’s actual responsibilities and provide enough information to understand what the employer believes needs to improve.
General statements such as “not a team player” or “has a bad attitude” may be difficult for an employee to address when the employer provides no concrete examples or explanation. Specific examples can give an employee a clearer understanding of the concern and a meaningful opportunity to respond or improve.
Vague criticism is not automatically unlawful. Employers may have legitimate reasons for raising concerns about conduct or performance. However, unexplained or inconsistent feedback can become more significant when combined with evidence of discrimination, retaliation, or other improper treatment.
Accommodation During the Review Process
Employees with disabilities may be entitled to reasonable accommodations that help them perform their essential job duties. When an accommodation has been approved, the employer should consider the employee’s circumstances in evaluating performance rather than treating limitations addressed by the accommodation as independent performance failures.
An accommodation does not necessarily excuse an employee from meeting legitimate performance standards. Instead, the employer generally must consider how the approved accommodation affects the employee’s ability to perform the position’s requirements.
If an employee believes a performance criticism is connected to a disability or conflicts with an approved accommodation, documenting the issue can be important.
When a Negative Review Leads to Termination
A poor performance evaluation can sometimes precede disciplinary action or termination. Employees may therefore want to pay attention to significant changes in how their performance is documented, particularly when those changes occur after a long period without documented problems.
For example, an employer may begin creating extensive negative documentation shortly after an employee makes a protected complaint. The existence of a performance-related paper trail does not by itself establish retaliation or discrimination. The underlying facts, timing, prior evaluations, treatment of other employees, and stated reasons for the employer’s actions may all be relevant.
If termination eventually occurs, earlier performance reviews may become important evidence when examining whether the employer’s stated explanation is consistent with the employee’s documented history.
What Employees Can Do
Employees who believe a performance evaluation is inaccurate, discriminatory, or retaliatory should consider creating a written record of their concerns.
Useful steps may include:
- Requesting specific examples supporting negative feedback
- Keeping copies of current and previous performance evaluations
- Recording important conversations about the review
- Preserving relevant emails, messages, and other communications
- Documenting when complaints, accommodation requests, or other protected activities occurred
- Reviewing whether similar performance issues were treated differently for other employees
- Following any company process for submitting a written response or rebuttal
A clear timeline can become particularly valuable if the review later leads to discipline, a performance improvement plan, or termination.
The Right to Raise Concerns Without Fear
Employees generally have the right to respectfully dispute a review they believe is inaccurate, whether through a formal rebuttal process, a conversation with human resources, or a written response attached to the evaluation.
Exercising this right should not, on its own, result in further retaliation. If raising a good faith concern about a review leads to additional discipline or a sudden termination, that response may itself raise legal issues separate from the original evaluation.
If you believe your rights have been violated at work, our team at Sirmabekian Law Firm is here to help.
Contact Sirmabekian Law Firm today to schedule a consultation and find out what options are available to you.
Frequently Asked Questions
Employers should generally provide specific, job related reasons for a negative evaluation. Vague or unexplained criticism, especially if it contradicts prior positive reviews, can raise concerns about fairness or bias.
The review itself is not automatically unlawful, but if it appears to be retaliation for a protected complaint, such as reporting harassment or unpaid wages, that timing can support a legal claim.
In California, employees generally have the right to inspect and obtain copies of their personnel records, including performance reviews, within a reasonable time after making a request.
An employer should evaluate an employee’s performance in light of any approved reasonable accommodation, rather than penalizing the employee for limitations the accommodation was meant to address.
Keep a written record of the review, prior evaluations, and any related events, and consult an employment attorney to evaluate whether the evaluation reflects a legal violation.