Getting a negative performance review can feel like criticism, but sometimes it means something more serious. We often see cases where an employee with years of good reviews suddenly starts getting written warnings, poor ratings, or unclear criticism, even though their work hasn’t changed. This shift is especially important if it happens after the employee files a discrimination complaint, asks for a medical accommodation, takes protected leave, reports illegal conduct, or does something else protected by law. Employers can set standards, evaluate performance, and fire employees for real performance issues. The legal problem comes up when a review is changed, exaggerated, or created just to justify firing someone for an unlawful reason.
Illinois generally follows the employment-at-will doctrine, which means many employees can be terminated for a lawful reason or, in some circumstances, without a stated reason. At-will employment does not give an employer permission to fire someone for an unlawful reason.
This difference is very important when we look at sudden changes in performance records.
An employer may say that an employee was terminated because of missed goals, poor communication, attendance issues, or failure to meet expectations. If those concerns are genuine and consistently documented, the employer may have a legitimate basis for its decision.
But if the record tells a different story, the performance explanation deserves closer scrutiny.
We look at whether the employee previously received positive reviews, bonuses, promotions, increased responsibilities, raises, or praise from supervisors. We also examine when the criticism began, who initiated it, whether the standards changed, and whether comparable employees were treated differently.
A performance review can become important evidence because it may show either a legitimate business reason for termination or an attempt to manufacture one.
Federal and Illinois laws prohibit employment decisions based on certain protected characteristics. Title VII of the Civil Rights Act of 1964 makes it unlawful for a covered employer to discharge or otherwise discriminate against an employee because of race, color, religion, sex, or national origin. The law is codified at 42 U.S.C. § 2000e-2.
The Americans with Disabilities Act, 42 U.S.C. § 12112, prohibits covered employers from discriminating against qualified individuals because of disability in hiring, advancement, discharge, compensation, and other terms and conditions of employment. It also addresses reasonable accommodation obligations.
The Age Discrimination in Employment Act, 29 U.S.C. § 623, prohibits covered employers from discharging or otherwise discriminating against protected workers because of age.
Illinois provides additional protection through the Illinois Human Rights Act. Under 775 ILCS 5/2-102, employers may not discriminate in discharge, discipline, promotion, hiring, or other employment conditions based on unlawful discrimination and other protected grounds recognized by Illinois law.
A negative review becomes important if performance concerns start only after a protected characteristic, like age or disability, becomes part of the employer’s decision.
For example, an older employee may receive years of strong evaluations and then suddenly be described as unable to “keep up” shortly before being replaced by a substantially younger worker. An employee who discloses a disability and requests accommodation may suddenly be rated poorly for issues that were never raised previously. A female employee may be criticized for conduct that male employees routinely engage in without consequences. None of these facts alone proves discrimination. But when combined with other evidence, they can raise real doubts about the employer’s explanation.
One of the most important issues we examine is whether the employer began building a disciplinary record only after deciding that it wanted the employee gone.
The sequence can be revealing.
An employee may have satisfactory reviews for years. A new supervisor arrives, a complaint is made, leave is requested, or another protected issue arises. Shortly afterward, minor incidents begin appearing in writing. Informal conversations suddenly become formal warnings. Ordinary mistakes that previously drew little attention are described as major failures.
Eventually, the employer points to the collection of warnings and says the termination was the predictable result of poor performance.
The question is whether the documentation reflects what actually happened.
We compare the written review with emails, sales data, productivity records, customer comments, prior evaluations, attendance records, internal messages, bonus history, and how other employees were treated.
If the performance review is inconsistent with objective evidence, that inconsistency can matter.
Retaliation cases frequently involve a change in how an employee is treated after protected activity. Federal equal employment opportunity laws prohibit retaliation when an employee asserts rights protected by those laws. The Equal Employment Opportunity Commission specifically recognizes that retaliation can include a reprimand, increased scrutiny, or a performance evaluation that is lower than it should be when the action is taken because of protected EEO activity.
That does not mean employees become immune from legitimate discipline after making a complaint. An employer can still address genuine performance or misconduct issues. The legal question is whether the negative action occurred because of the protected activity rather than because of legitimate performance concerns.
We therefore look carefully at timing.
Suppose an employee reports racial discrimination to human resources and receives the worst performance review of a ten-year career three weeks later. Or an employee complains about sexual harassment and suddenly receives heightened scrutiny from the same manager implicated in the complaint.
Timing alone may not establish retaliation, but it can become significant when combined with inconsistent explanations, unusual discipline, or evidence that similarly situated employees were treated differently.
The Illinois Human Rights Act contains its own retaliation protections. Under 775 ILCS 5/6-101, retaliation is prohibited when a person has opposed or reported conduct reasonably and in good faith believed to violate the Act, participated in an investigation or proceeding, or requested or attempted to request a reasonable accommodation.
This means a negative performance review may deserve close attention when it follows an internal discrimination complaint, participation in a human rights investigation, or an accommodation request.
The central issue is not whether the review was unpleasant. Employment law does not require supervisors to be fair, pleasant, or even particularly good managers in every circumstance.
What matters is whether an unlawful motive influenced the review, discipline, or eventual termination.
Not every retaliation case involves discrimination. An employee may report fraud, regulatory violations, unsafe practices, wage issues, financial misconduct, or another activity believed to violate state or federal law. Soon afterward, management may begin documenting supposed performance shortcomings.
The Illinois Whistleblower Act provides important protections in certain situations.
Under 740 ILCS 174/15, an employer may not retaliate against an employee for certain good-faith disclosures involving conduct the employee believes violates state or federal law, rule, or regulation, or presents a substantial and specific danger to employees, public health, or safety. Current Illinois law also protects qualifying internal disclosures to supervisors and certain organizational officials.
Section 20 of the Act also prohibits retaliation against an employee who refuses to participate in conduct the employee has a good-faith belief would violate state or federal law.
A suspicious performance review appearing shortly after protected whistleblowing activity can therefore become part of a retaliation analysis.
One of the first things we want to know is whether the negative review matches the employee’s actual performance. Objective records can be particularly useful.
If the review says sales declined, what do the sales numbers show? If management claims deadlines were repeatedly missed, are there emails showing assignments were completed on time? If the employee supposedly received numerous complaints, where are those complaints? If attendance suddenly becomes the justification, does the attendance record support the claim?
We also compare the review with earlier evaluations.
A dramatic change can be important when there is no corresponding change in duties or performance. An employee who was rated highly six months earlier should understand why the employer now describes the same work as unacceptable.
Employers are permitted to change standards and demand improvement. They should not, however, use invented standards selectively as a cover for prohibited discrimination or retaliation.
Comparative evidence can also matter. Suppose an employer claims that an employee was terminated for making three errors. If employees outside the protected group made similar or more serious errors and were not disciplined, that disparity may raise questions.
The details matter. The employees being compared should generally have similar responsibilities, decision-makers, circumstances, and conduct before a meaningful comparison can be made.
Still, inconsistent enforcement is something we examine closely. An employer’s rule may look neutral on paper but become suspicious when it is enforced aggressively against one employee while being ignored for others. That can be particularly important when a performance improvement plan, written warning, or final review becomes the immediate basis for termination.
A performance improvement plan, commonly called a PIP, is sometimes a legitimate attempt to correct performance problems. In other situations, it may be the last stage of a decision that has already been made.
We advise employees not to assume that every PIP is a sham. At the same time, they should take it seriously.
Read the document carefully. Determine whether the goals are measurable. Compare them with your job description and past expectations. Keep records showing your efforts to satisfy the requirements. Preserve emails demonstrating completed work and communications with supervisors.
If the goals are impossible, constantly changing, or materially different from standards applied to other employees, document those facts carefully. The way an employer administers a PIP can later become just as important as the PIP itself.
If years of positive employment history were suddenly replaced by negative evaluations, disciplinary warnings, or a performance improvement plan shortly before your termination, we can examine whether the stated performance concerns tell the whole story.
At the Law Office of Josh McCann, we represent employees in Chicago employment disputes involving wrongful termination, discrimination, retaliation, and related workplace claims. We review the timeline, performance records, internal complaints, communications, and the employer’s stated reason for termination to determine whether federal or Illinois employment protections may apply.
To receive your free consultation, contact our Chicago wrongful termination lawyer at the Law Office of Josh McCann when you call (847) 450-1103.
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