Ask The Lawyer

By Debra Roth

Setting performance standards

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In previous columns, I have discussed actions a manager should take when an employee does something wrong. But how do you ensure employees do something right? Writing and communicating effective performance standards and plans for employees can go a long way in developing a stellar workforce.

A well-structured performance plan outlines the expectations you have of a position. If an employee turns out to be a poor performer, his or her inability to live up to these standards protects your legal liability when adverse personnel action must be taken.

There are basic legal guidelines to follow in developing performance standards and plans. The Office of Personnel Management’s Web site on performance management,, is a good resource.

According to Title 5 of the U.S. Code, performance standards must meet several criteria to be considered valid:

*First, standards must be reasonable. This means that a standard for acceptable performance should be achievable by any employee qualified to do the job. Standards should identify exactly what an employee is to accomplish and how well the employee must perform the task. For example, say you are managing a secretary. A good performance standard might state that the secretary is expected to develop and maintain accurate files on a weekly basis. This establishes the task at hand — to update the files — and specifies the requirements for positive performance — correctness of the files and frequency with which they are updated. A bad performance standard would fail to provide a measurement for success.

*Second, standards must be clearly communicated. Section 4302 of Title 5 states that agencies must “communicate to each employee the performance standards and the critical elements of the employee’s position” at the beginning of each appraisal period. This is where the performance plan comes into play.

Every employee should get a performance plan at the beginning of the rating year. The plan should comprise the performance standards by which the employee will be evaluated.

I find it effective to maintain written performance plans in the employee’s personnel file. Also, reviewing a hard copy with the employee can go a long way in establishing effective communication.

The number of performance standards included in a plan will depend on the position. Higher-grade positions require more standards than lower-grade positions, but managers should keep the number of standards reasonable so they can actually be attained.

Some positions may require that performance standards be quantifiable, but that will depend on the job description and the agency’s mission. If you are an air traffic controller, it would be reasonable for your performance standards to indicate that your error rate should be as low as possible.

Governmentwide regulations mandate that performance plans include at least one critical job element. Managers must identify in the performance plan which elements are considered critical. A critical element is a task, function, process or duty so crucial to the position that the failure to perform it would justify a poor performance rating. An employee’s failure to perform a critical element at a satisfactory level would justify removal, demotion or reassignment. Plans can also include noncritical elements, which are tasks or duties that, while important, are not essential to the successful performance of the position.

Returning to our secretary, whose job is to draft correspondence, a critical job element would be the ability to use a computer. A noncritical element may be the ability to use a dictation machine if this device is used only occasionally.

*Third, performance plans must explain the job elements and standards by which an employee will be evaluated. Standards should be positive — they should state the level of performance you want to see, not the standards you don’t want to see. For example, a standard for our secretary that says faxes should not be given to you a day later than received would be backwards. Instead, say a fax should be delivered within an hour of its arrival.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to

The pitfalls of gender stereotyping

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Federal employees filed 6,001 complaints of sex discrimination in 2007 under Title VII of the 1964 Civil Rights Act, according to statistics from the Equal Employment Opportunity Commission. More than a third of the complaints, 2,224, came from men.

Many people tend to be of the mind-set that sexual harassment is the only form of sex discrimination. Sexual harassment is only one form of sex discrimination.

I prefer to use the terminology “gender discrimination” to refer to discrimination based on an employee’s status as a male or female. Gender discrimination does not have to involve sexual behavior. Any personnel decisions — including hiring, firing, promoting, training or assigning — made based on gender could lead to a complaint of disparate treatment.

Gender discrimination generally stems from the standard male and female stereotypes.

A common area where managers fall to gender stereotypes is work assignments. When a man is hired over a woman for a traditionally male job, such as heavy labor, the female applicant may believe she is the victim of gender discrimination if she didn’t have an equal opportunity for the job. Job qualifications relating to height, weight and lifting requirements are legal, but there must be a demonstrated need for these requirements. If the connection between the requirements and the job functions is not clear, a charge of sex discrimination could be successful.

Conversely, avoid stereotyping male applicants applying for traditionally female jobs. When interviewing a male candidate for a role such as nursing, avoid asking why he entered the field or how he would feel working in a largely female environment. If passed over for the position, the job candidate could claim disparate treatment on the basis of the questions.

Interviewers also need to be careful asking questions involving family status or obligations. If you ask one female candidate about her willingness to travel after learning she is the mother of two young children, be sure to ask the question of all the candidates.

Gender discrimination goes beyond the hiring process. Expecting a higher quality or faster rate of work from one employee over another based on gender is sex discrimination.

For example, in the 2007 case Robert T. Boff v. U.S. Postal Service, the Equal Employment Opportunity Commission found the complainant was subjected to sex discrimination when he was given more work than a female employee. When Boff requested assistance in completing his workload, his manager denied the request because because Boff should be able to do double the work of a female employee. A co-worker backed up Boff’s claim by stating that the manager frequently granted female employees lighter workloads. The Postal Service was ordered to provide the manager training and to consider disciplining him.

Issues of gender discrimination can also be raised regarding appearance or dress in the workplace.

In 2007, the Transportation Department dismissed a male employee’s complaint alleging discrimination when he was told his green pants were not appropriate business casual attire. EEOC reversed the decision, stating that the issue was gender discrimination since the complainant claimed he was instructed to dress in a more masculine manner. This shows the importance of avoiding gender stereotypes in dress-code policy.

While sexual orientation discrimination is not specifically prohibited under Title VII, both the Office of Personnel Management and the Office of Special Counsel have interpreted the prohibition of discrimination to include sexual orientation. This means managers cannot discriminate against a federal employee or applicant for any personnel action because the individual may be homosexual, bisexual or transgendered.

Generally, complaints of discrimination based on sexual orientation fall under EEOC’s jurisdiction only when they involve sexual harassment. Complaints of sexual orientation discrimination affecting personnel actions or decisions are made through agency grievance procedures and may be further considered by OSC, the Merit Systems Protection Board or federal courts.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to