Imagine this: Your boss hands you a Performance Improvement Plan (PIP) or an unfavorable performance review that you believe is unfair, misleading, or just plain wrong. What do you do? Should you sign it? Refuse? Write a snarky comment in the margins?
The short answer: Yes, you should sign it—but with an important caveat. Let’s dive into the why, how, and what this means for you as an employee.
What Is a PIP or Performance Review?
A Performance Improvement Plan (PIP) is a formal document outlining areas where your employer believes your performance is lacking. It sets specific goals for improvement, often within a fixed timeframe. While PIPs can be a genuine effort to help employees improve, they are frequently used as a prelude to termination. Similarly, unfavorable reviews document alleged shortcomings and can be used as evidence to justify disciplinary actions, including termination.
Do You Have to Sign It?
Legally, no employer can force you to sign a document you don’t agree with. However, refusing to sign a PIP or unfavorable review can have serious consequences, including termination. For example, in Cole v. State of Illinois, the United States Court of Appeals for the Seventh Circuit upheld the employer’s right to terminate an employee for refusing to sign a PIP. The Court held that the refusal to sign was a legitimate, non-retaliatory reason for termination. As the Court stated: “The evidence demonstrates that the sole reason for her termination was her failure to agree to the performance improvement plan.” Cole v. State of Illinois, 562 F.3d 812, 817 (7th Cir. 2009).
The employer’s perspective is simple: Refusing to sign might look like insubordination, which could make it easier for them to terminate you without violating employment laws.
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The Smart Move: Sign, but Make Your Position Clear
If you disagree with the PIP or review, you should still sign it but include a statement to protect yourself. Write something like:
- “Signing PIP to acknowledge receipt only. I do not agree with the contents of this document.”
- “I believe this action is based on retaliation and/or employment discrimination, and I reserve my rights under applicable employment laws.”
Adding these notes serves several purposes:
- It demonstrates your willingness to comply with the process, avoiding accusations of insubordination.
- It creates a written record that you objected to the document’s contents.
- It can later support a claim of discrimination, retaliation, or wrongful termination if the situation escalates.
Why Should You Be Specific About Discrimination Or Retaliation?
If you suspect that the PIP or review is based on race/color discrimination, gender discrimination, sexual harassment, disability discrimination, or any other unlawful motive, you must say so. Under Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and other laws, employers cannot retaliate against employees for opposing unlawful practices. By identifying your concerns in writing, you establish a record that you believe your treatment violates these laws.
For example, in Sublett v. Masonic Homes of Kentucky, Inc., the United States District Court for the Western District of Kentucky addressed whether a PIP and subsequent termination were retaliatory. The Court held: “Sublett’s refusal to participate in the PIP as proposed by MHK justified its termination of Sublett, and she has not presented evidence of pretext sufficient to overcome MHK’s motion for summary judgment.” Sublett v. Masonic Homes of Kentucky, Inc., 2021 WL 4487608, at *9 (W.D. Ky. 2021).
Including your concerns in the document makes it clear that you are engaging in protected activity, which could shield you from further retaliation.
Best Wrongful Termination Lawyer Blogs on Point:
- Critical Action: Timely Report Harassment And Discrimination
- Why Reporting Race Discrimination To HR Is Critical
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How A PIP Could Strengthen Your Case
Believe it or not, a PIP can be useful in a discrimination or retaliation claim. Why? Because it sets clear, measurable goals. If you meet or exceed those goals and the employer still fires you, it could demonstrate pretext—a false reason given to cover up discrimination or retaliation.
Consider this scenario: Your employer places you on a PIP, claiming your performance is poor. You work diligently to meet every requirement. Despite this, they terminate you before the PIP period ends or claim you didn’t meet vague or subjective criteria. This can raise red flags in court, showing the PIP was a pretext for unlawful actions.
In Cole, the Court noted that the employer’s PIP was not an adverse employment action because it provided a chance for improvement. However, if an employer refuses to allow you to complete the PIP or unfairly moves the goalposts, that could support a claim of employment discrimination or wrongful termination.
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When Does a PIP Become Employment Discrimination Or Retaliation?
A PIP or review might cross the line into unlawful behavior if:
- It is issued soon after you engage in protected activity, such as reporting sexual orientation discrimination, religious discrimination, or national origin discrimination.
- It includes impossible or vague goals designed to ensure your failure.
- It is part of a pattern of targeting employees based on age discrimination, gender identity discrimination, or other protected characteristics.
For example, an employee who recently reported sexual harassment might argue that a sudden and harsh PIP is retaliation for their complaint. Similarly, an employee with a disability who receives a PIP after requesting accommodations could claim disability discrimination if the PIP is unfair or punitive.
Best Employment Retaliation at Work Lawyer Blogs on Point:
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Protecting Yourself: Best Practices
- Document Everything
Keep detailed records of all communications about the PIP or review. Save emails, take notes during meetings, and retain copies of the document you signed with your comments. - Provide a Written Rebuttal
If allowed by your employer, submit a written rebuttal outlining your objections. Be factual and professional. Your rebuttal may become part of your personnel file and could be crucial evidence if you pursue legal action. - Be the Model Employee
During the PIP period, focus on meeting or exceeding the outlined goals. This strengthens your case if you need to argue that the PIP was pretext for discrimination or retaliation. - Consult an Employment Lawyer
If you believe the PIP or review is based on employment discrimination, retaliation, or any other unlawful reason, speak with an experienced employment lawyer immediately. They can help you navigate the process and protect your rights.
Best Wrongfully Fired Attorney Blogs on Point:
- Is It Illegal For My Job To Retaliate Against Me For Reporting Discrimination And Harassment?
- Should I Report Racial Harassment By Coworkers? Yes!
- Don’t Wait To Report Workplace Discrimination And Harassment
Why Call Spitz, The Employee’s Law Firm?
At Spitz, The Employee’s Law Firm, we specialize in fighting for employees like you. Our attorneys are dedicated to helping workers who face discrimination, retaliation, or wrongful termination. Here’s why you should call us:
- We are one of the best firms focused exclusively on employee rights.
- We offer a free initial consultation and a no-fee guarantee—you don’t pay unless we win.
- Our team has extensive trial experience and a track record of delivering great results.
- We understand what you’re going through and are committed to helping you get justice.
If you’re dealing with a PIP or unfavorable review and suspect discrimination or retaliation, call us today. Let us help you protect your rights and build your case. Let us know how we can fight for your rights—because your job, your dignity, and your future matter.
Disclaimer
This blog is for general informational purposes only and should not be taken as legal advice. Employment law cases, including those involving race discrimination, gender discrimination, sexual harassment, disability discrimination, retaliation, or wrongful termination, are complex and require specific legal guidance tailored to your situation. For personalized advice, consult a qualified employment lawyer. No promises or guarantees are made regarding the outcome of your case. This blog is a legal advertisement.