Most employees do not get into trouble for failing to meet a rule they never knew existed.

Until they do.

For many New Yorkers, the pattern is unsettlingly familiar. You raise a concern about harassment or discrimination. You request a reasonable accommodation. You return from medical or family leave. You participate in an internal investigation. Everything appears calm on the surface. Then, without warning, a new standard suddenly becomes decisive.

Your numbers are not where they should be.

Your response time is now under scrutiny.

Your utilization rate has become a problem.

Your sales pace is no longer acceptable.

Your availability is suddenly insufficient.

The metric sounds neutral. It sounds objective. It sounds like business. But the timing feels off.

Metrics are not illegal. Selective enforcement can be.

Employers are allowed to set performance expectations. They can track productivity, responsiveness, sales, attendance, and output. The law does not prevent companies from measuring performance or adjusting priorities.

What the law does prohibit is using performance metrics as a pretext for discrimination or retaliation.

Under the New York City Human Rights Law, retaliation includes any conduct that is reasonably likely to deter someone from exercising their rights, such as reporting discrimination or requesting an accommodation. New York State law also prohibits retaliation against employees who engage in protected activity. Federal law under Title VII does the same. The focus is not on whether the metric exists. It is on why it suddenly matters, who it is applied to, and how it is used.

A metric that was ignored for years but becomes decisive immediately after protected activity raises legitimate legal questions.

Timing tells a story metrics cannot hide

Employees often ask how a company can be held accountable if the standard itself is real. The answer lies in timing and consistency.

If a performance metric only becomes essential after an employee speaks up, returns from leave, or requests an accommodation, that timing can support an inference of retaliation. Courts do not assume retaliation based on timing alone, but they do not ignore it either. When an adverse employment action closely follows protected activity, timing becomes part of the evidence.

This is especially true when the employee’s prior evaluations did not mention the metric, or when the employee was meeting expectations until the moment they exercised a protected right.

Shifting standards are a red flag

Another common warning sign is when expectations change without explanation.

Employees are told they are doing well. Then the goalposts move. A new benchmark appears. A threshold is raised. A vague concern becomes a written critique – meanwhile, coworkers who have not complained or requested accommodations are evaluated under older or looser standards.

Under New York law, inconsistent application of performance standards can be evidence of retaliation or discrimination. The law allows decision-makers to consider comparators who were evaluated the same way and those who were not. If similarly situated employees are treated differently, the metric loses its claim to neutrality.

Metrics can also mask disability discrimination

Performance metrics frequently collide with disability rights.

An employee requests an accommodation. A flexible schedule. Modified duties. Remote work. Additional breaks. Shortly afterward, the employer points to productivity metrics that the accommodation supposedly undermines. The employee is told they are no longer meeting expectations.

Under New York City and New York State law, employers have obligations to engage in the accommodation process and to avoid penalizing employees for limitations tied to a disability. A metric that fails to account for an approved accommodation, or is used to justify withdrawing one without analysis, can cross legal lines.

The law does not require employers to ignore performance, but it does require them to apply standards fairly and lawfully.

When metrics become retaliation

Employees are often surprised to learn that retaliation does not require termination or a pay cut.

Under New York City law, an action can be retaliatory if it would reasonably discourage a person from exercising their rights. Heightened scrutiny, sudden discipline, denial of opportunities, and the use of newly emphasized metrics to justify negative treatment can all qualify, depending on the context.

This is why metrics matter so much after protected activity. They are an easy way to punish without admitting motive. But the law looks past labels and examines patterns.

What employees can do when a metric suddenly appears

If a performance metric suddenly becomes decisive after you engage in protected activity, you do not need to assume the employer’s explanation is correct.

Pay attention to what changed and when. Compare the new expectations to prior evaluations. Note whether others are being held to the same standard. Keep a private timeline of your protected activity and the shift in performance scrutiny. A personal log of your own experiences is lawful. If you preserve communications, avoid saving confidential or proprietary business materials. When you are unsure what is appropriate to keep, speaking with an attorney first can help you avoid unintended issues.

Most importantly, do not let the existence of a metric silence you. Objective language does not make unlawful conduct lawful.

The bigger picture

Performance metrics should measure work, not punish workers for asserting their rights. They should not be deployed selectively to sideline employees who speak up, need accommodations, or take protected leave.

At Risman and Risman, P.C., we work with New Yorkers who were told their job suddenly depended on a metric that never mattered before. We help employees assess whether performance standards are being used legitimately or as a cover for retaliation or discrimination.

If a performance metric suddenly becomes the reason your job is at risk, and the timing doesn’t make sense, we can help you understand your options.

For a free confidential consultation, contact us at 212 233 6400 or online.