In Birch v. Cuyahoga Cty. Probate Court, a court magistrate sued the court and its presiding judge, claiming that her status as the lowest paid court magistrate constituted wage-based sex discrimination. Specifically, Birch claimed that all of the female probate court magistrates were paid lower salaries than all of the male magistrates, that the highest paid female magistrate earned less than her lowest paid male counterpart, and that she was the lowest paid of all. In defense of the wage practice, the probate court claimed that it paid Birch less because of poor job performance. The Court, however, rebuked that claim because of the employer's failure to document any of the concerns in Birch's personnel file:
Appellees' assertions supported by documentary evidence might have established these facts beyond dispute. Due to a history of regrettably minimalist supervisory employment practices, however, the record is barren of evidence apart from the assertions of Judge Donnelly and Magistrate Polito to this effect. [The record demonstrates that there are no job descriptions for magistrates, no written description of the work performed by the various departments, and no protocol for determining magistrate salaries. Employees are not evaluated, and the court does not produce written documentation of performance concerns.] These assertions do not establish that appellees would have taken the same action in the absence of discriminatory motive. They do, however, create a genuine issue of material fact that precludes summary judgment.
The bottom line: if you plan on defending a discrimination case based on poor job performance, it's best to have the deficiencies documented somewhere, preferably in the employee's personnel file.