Sometimes we say that we’ve "seen it all" in employment problems-only to turn around and discover yet another unique way that employees or employers have gotten themselves in trouble. One thing is certain, we see the following four situations all the time and they muddy the waters for employers almost every time.
Inaccurate employee performance evaluations
Too often employers are overly cautious in writing performance evaluations and will omit an employee’s deficiencies in an attempt to not “rock the boat” or to not damage the employee’s self-esteem. However, employers are doing themselves a disservice when they do not point out, honestly and with concrete examples, areas for improvement with an employee. First, pointing out deficiencies and providing constructive ways to improve on them can lead to better performance and a better employee for the organization. Second, positive performance reviews for employees that are struggling can be used against an employer in litigation. If an employer were to discharge an employee for poor performance or other violations of policy, and such behavior occurred during the time of performance evaluation, if that behavior is not documented then the positive performance evaluations can be used as evidence of pretext. A common refrain in litigation from plaintiffs is “look at my evaluation,” and “if there was a problem why was it not documented”? While positive performance evaluations for a struggling employee are not going to single-handedly sink a case for the employer, they are at best an unnecessary distraction and at worst something that will need to be refuted through testimony and/or affidavits and can create an issue of fact to be resolved by a jury. Performance evaluations should therefore honestly and professionally document any issues an employee may be having while providing concrete examples of such issues and specific ways to address and resolve them.
Document preservation
EEO Policies

Consistency
The old adage that “no good deed goes unpunished” can be used in the vast majority of employment lawsuits. Employers may believe they are “being nice” or accommodating to an employee by bending the rules for them, but this can lead to problems in litigation. Any other employee a plaintiff can point to who was treated more favorably than her for similar misconduct can lead to arguments that they were treated better because they are not in the same protected class as the plaintiff. By applying the rules and policies of the organization evenly to all employees the employer cuts off any potential argument that they are “playing favorites” to a different class of individuals.
While an infinite number of ways apparently exist for the employment situation to go sour and end up in litigation, employers should note that if they avoid these four common mistakes, they may avoid some litigation, or at least find themselves in a better defensive position if they are sued.