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 SHRM Home > Publications > HR Magazine > 2001 Index > May 2001
HR Magazine, May 2001
May 2001 2000
Vol. 46, No. 5
Great Expectations by Jathan W. Janove
Could an employer’s benevolent acts lead to a discrimination claim? Absolutely. Here’s one example.

Bill, a salesman, developed cancer. In addition to the debilitating effects of the cancer treatment, Bill experienced a host of other ailments that left him unable to drive, lift or carry anything of consequence and able to focus only for brief periods. Nevertheless, Bill wanted to continue working. His boss, Peter, the sales manager, was a kind person. Peter readily acceded to Bill’s request and said that everything possible would be done to accommodate Bill’s limitations.

Despite Peter’s best intentions and the sympathetic support of Bill’s colleagues, Bill effectively ceased to function, and department productivity eroded. On days when Bill felt able to come to work, Peter would dispatch one of the other employees to pick him up at his home. When Bill needed to leave early due to pain, nausea or exhaustion, another employee drove him home. Bill also needed a driver and assistant on the infrequent occasions he felt able to make a sales call. He spent most of his work time on a couch in one of the offices, occasionally making a telephone call to a customer.

During the next eight months, Bill’s compensation increased. He continued to receive his full salary and all commissions on his assigned accounts although he had nothing to do with the sales generated. Moreover, through Peter’s help, he received payments from the company’s self-insured, long-term disability plan, even though he had suffered no decline in regular income.

Eventually, top management noticed the situation. In addition to the money Bill was costing the company, management saw additional signs of trouble. Other salespersons had become unhappy about the time they had to spend on Bill’s accounts without compensation. The hourly sales support employees were unhappy about having to act as salespersons on Bill’s accounts—while still earning their $8.50 per hour, not the $60,000 plus paid annually to salespeople. In addition, the company lost a couple of important accounts assigned to Bill, and these customers complained of being neglected. As a result, executive management instructed Peter to discharge Bill.

Peter later explained that he had sheltered Bill from the problems. Peter never communicated the workforce disruptions, lower productivity, higher costs, resentment of other employees or customer dissatisfaction. He chose not to mention these problems in the termination interview and instead used a “neutral” word that he thought would not hurt Bill’s feelings. The word he selected and the reason he gave for Bill’s discharge was “disability.” Peter then wrote this word on the company’s exit form on the line next to “Reason for termination.” Finally, Peter provided Bill with a generous severance package but didn’t ask for a release of claims in return.

Shortly after cashing his last severance check, Bill filed an Americans with Disabilities Act (ADA) claim.

Employee Anger

Sometimes the misguided benevolence of employers takes the form of dishonesty, as in Peter’s case when he avoided telling Bill the truth to spare his feelings. Peter had not yet learned the lesson that although employees may become defensive or hostile in the face of criticism of their performance or conduct, such hostility is assured when the employee believes his or her boss to be lying.

It’s no surprise that Peter was shocked when I told him during litigation that Bill had not “set him up” but that Bill genuinely was angry with him. “Of all people, including my family, Bill should be the last person angry at me,” Peter said. “I bent or broke every rule in the book for him.”

I tried to help Peter understand Bill’s anger and accept the fact that the company would be giving Bill a second, more lucrative “severance” package—this one in exchange for a dismissal of the lawsuit and a release. I asked Peter to imagine having raised one of his children as he had managed Bill. After a childhood where his parents “broke or bent every rule in the book” on the child’s behalf, what kind of adult would such a child grow up to be? What would this adult ultimately think of his or her parents?

This analogy helped Peter to understand a paradox that had misled him and that continues to mislead many other compassionate managers. They sympathize with an employee’s health problems, emotional problems, family problems or other personal issues or challenges. As a result, they relax or even abandon their expectations of the employee’s conduct and performance. Yet not only do they and their workplaces pay a price in terms of productivity and morale, the employee seldom finds a happy outcome. Instead, the employee often becomes embittered and ends up suing his employer or engaging in other harmful acts.

Performing “autopsies” of terminal employment relationships often reveals this pattern of employee misbehavior or unacceptable performance. Management ignores, tolerates or acquiesces in it, usually by rationalizing that no action is best for all. The price for this lack of accountability increases as the employee spirals downward. Eventually, action must be taken. The employee then refuses to accept responsibility for the problem, sees himself as a victim and turns to the legal system for redress of grievances.

Even when the situation doesn’t result in litigation, misguided management benevolence still leads to negative situations. For example, Susan, the controller of a small but rapidly growing equipment rental company, had an aversion to computers and resisted learning how to use sophisticated financial tracking software despite repeated admonitions from the general manager to do so.

In the face of her resistance, the easy-going general manager backed off. Eventually, a multistate company with sophisticated computer systems acquired the small company. Guess who was “downsized” in the transition? Because Susan was in her late 40s, I was consulted about the potential for an age discrimination claim. The issue was not age but lack of necessary skills, and her termination occurred without a lawsuit.

The Need for Employer Expectations

The key to any successful employer-employee relationship is communicating expectations. This point is illustrated by a story in Everyone’s a Coach, co-written by former National Football League (NFL) coach Don Shula and Ken Blanchard (Zondervan Publishing House, 1995).

In 1989, Shula faced a situation similar to Peter’s. The coach of the special teams of the Miami Dolphins, Mike Westhoff, developed bone cancer and underwent chemotherapy. Westhoff wanted to continue doing his job despite the cancer, and Shula was willing to give him the opportunity. But unlike Peter, Shula didn’t “baby” Westhoff. According to Westhoff, when Shula visited him in the hospital, “I thought he would tuck me in, but he didn’t. He treated me the way I could be, not the way I was.”

When Westhoff went to training camp in July, he was pale, emaciated, “with crutches, a giant brace and no hair.” He frequently had to leave his office to vomit. Yet Westhoff persisted. One day at practice, he and Shula argued over the relative merits of a kicker. Shula “made sure I’d done my homework,” Westhoff recalls.

Westhoff reported going home that night and for the first time in a long time, eating a full meal and digesting it. He went on to coach successfully and win recognition from the NFL for his inspiring personal example. Westhoff credited Shula with his triumph. “Don Shula never looked at me as if I were handicapped,” Westhoff says. “He sees what you can be, not what you are.”

This story doesn’t suggest that disabled employees should not be accommodated. The Dolphins provided accommodations to Westhoff based on his physical limitations, but the accommodations never dis.placed the organization’s and Shula’s expectations of Westhoff’s performance. Instead, they helped him meet these expectations.

Advice to Management

About 18 months ago, the CEO of a small publishing company asked for my advice about his longtime office manager, Mary. He believed she needed to be replaced, but, because she was in her 50s, he wanted to be careful.

After inquiring into the extent of their communications, the situation appeared similar to Susan’s. New technology, new markets and new competitors required new and more sophisticated skills as well as a special emphasis on customer relations. Nevertheless, the office manager persisted in the view that yesterday’s practices were just as valid today. Her attitude seemed to be that if her interpersonal style seemed less than warm and fuzzy, others should “get over it.”

Despite his frustrations, the easy-going, conflict-avoidant CEO had continually acquiesced in her refusals to change. By the time he came to me, he felt there was no hope for her in his organization, and he wanted to find a way to discharge her without a lawsuit. I suggested a game plan to show Mary the gap between her performance and the CEO’s expectations. Using this approach would not only make the harbor safer for an eventual discharge, it would create an opportunity for turning failure into success.

The CEO agreed to try this approach, which centered on the manager’s expectations, responsibility and accountability. He specifically identified his expectations for the position of office manager and how these expectations connected to the overall mission, goals and core values of the company. He identified the gap between these expectations and her performance and conduct. He made himself available for advice and coaching, and offered resources such as training.

He also emphasized that the responsibility to close the gap rested with Mary and that progress would be measured. The CEO expressed his hope that the gap be closed and noted that a successful relationship would require substantial, positive change. After communicating these points verbally, he summarized them in a memo to her, which he then used to track progress and compare results.

Several months later the CEO asked me to come to his office to discuss some labor issues. As I entered the building, a woman who was especially friendly and personable greeted me. When I sat down with the CEO, I shared this observation. “Oh, didn’t you know? That’s Mary,” he responded, referring to the office manager. He proceeded to tell me that, to his own amazement, she had become one of his favorite employees. Forget about that talk of discharge, he said; he didn’t need my legal advice with respect to Mary.

A necessary element for a successful workplace relationship continues to be the employer’s communication of its expectations. Even when these expectations are communicated appropriately, success may not follow. Some employees are not suited for their jobs. Some disabilities cannot be reasonably accommodated. Nevertheless, when performance and behavioral expectations form the guidepost, the relationship usually can be ended in such situations without the anger, hostility and desire for revenge that fuel litigation.

More importantly, clear communication of employer expectations creates a surprisingly strong likelihood of a successful relationship despite the obstacles.


Jathan W. Janove is a partner in Janove Baar Associates L.C., Salt Lake City, a law firm devoted to providing workforce and management training and consulting that represents employers in workplace disputes.

 


 

 

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