March 24, 2023 • By Dennis Beaver
“Rex,” the hiring manager of a Midwest financial services firm, phoned asking if I had a minute to discuss something that he had never before faced:
“How do I respond to a job applicant who feels that, if hired, she has a right to dictate management’s manner of criticism or discipline? Mr. Beaver, have you ever heard of such a request?”
Neither I nor any of the HR and employment law attorneys I ran this question by had, but all raised serious doubts about the underlying intention – if any – this job applicant had in mind.
Her name is “Audrey” 22 years of age and about to graduate from a well-known Midwest university with a degree in finance.
“Is she not-so-secretly hoping to file a suit against your firm?” was the question that each HR and labor lawyer I spoke with raised.
“Her school has been a consistent source of excellent employees, and on paper she seems a perfect fit. But I have to admit something just doesn’t seem right,” Rex said, adding, perhaps there is nothing to worry about, but if she agrees, would you chat with her and find out why she has these concerns?”
I agreed and within minutes I was in a Zoom video call with an intelligent, professionally dressed, polite young lady whose attitude checks all the boxes.
“So, Audrey, tell me about yourself and what led to this very unique request? I have to be up-front, it makes you appear overly sensitive, so there must be a logical explanation.
“Can you help me understand what lies behind that request to limit the kinds of criticism a manager might make of you?”
That question opened a door into Audrey’s home life which, I would learn, had a profound impact on the way she was affected by hearing criticism – of anyone.
“When my parents would argue – usually over something Dad messed up – Mom didn’t address the issues, rather, she berated him without mercy and used a sarcastic, horrible put down tone of voice. Dad loved Mom, and we always heard him say how much he adored her. But it was a one-way street, partly because of her cultural background.
“Growing up, seeing your father cry after one of Mom’s lectures, had a deep impact on me and my brother. We promised each other that we would never treat an employee, co-worker or spouse that way.
“If Dad was upset over anything, he calmly set out the issues and asked for Mom’s help in resolving the matter. His tone of voice was always warm and respectful. He never put her down or was sarcastic.
“Dad died last year. Despite the way Mom treated him, in our last conversation before he died, he said, ‘I have been so blessed married to your mother.’
“I cried for weeks afterwards, Mr. Beaver, learning a powerful lesson from my father about not carrying a grudge and being able to pardon those closest to us.”
Warned that a Manager Would Open Old Wounds
Several of Audrey’s friends from school have been hired by this company and all agree that the manager was competent, but “sounds like the way you describe your home life – hurtful and sarcastic when giving criticism.”
They suggested that she look elsewhere for employment as this guy is not going to change his management style.
“But I need the job and was hoping to reach an agreement as to the manner of discipline,” she explained.
Analysis from a Labor Attorney
New York-based labor attorney “RJ” provided this analysis and recommendations:
(1) The question from a legal perspective boils down to: “Is she asking for an accommodation that she would otherwise be entitled to under the ADA (The Americans with Disabilities Act) due to her family experiences?”
(2) The entire area of emotional and psychological issues, as protected by the ADA, is an absolute, confusing swamp.
(3) In essence she is saying the equivalent of, “I have a physical disability and need to have that accommodated.”
(4) But the question is (a) is she disabled? And (b) is it reasonable to accommodate her in this regard? The answer to both questions is “no.”
(5) From a legal perspective, she does not have a disability, and it is not reasonable to require management to change its style to accommodate this applicant who grew up in a disfavored family life.
“I would tell Audrey to take the advice of her friends and look for a job elsewhere,” my New York colleague recommended. Starting out in life after college the last thing she needs is to tangle with lawyers and the ADA.”
Good, common sense advice.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.