For years I’ve been presenting programs on the challenges and opportunities associated with accommodating mental disabilities in the workplace. I think the first iteration was in 2004 at the Labor & Employment Advanced Practices Symposium with my friend and colleague Rich Paul at the Paul Plevin firm in San Diego. One premise was that many contributions to science, music, the arts, industry, fashion have come from individuals diagnosed with mental disabilities. We encouraged employers to think about making a place for talented people who may have unconventional behaviors or needs in the workplace.
Validation! Today I picked up the Lawrence Journal World and spotted this headline: “Creative people’s brains similar to schizophrenics’ brains, study finds” This Bloomberg News article cited a study in Sweden involving people who took creativity tests. The researchers found that creative problem-solvers had a lower concentration of proteins that aid in the chemical transmission of information in the thalamus, the part of the brain that determines what data is relevant for reasoning. That’s a trait commonly found in patients with schizophrenia, a mental illness whose symptoms include hallucinations, jumbled thoughts and paranoia. As I understand it, there is less information filtered by the thalamus on the way to the cortex where information is processed and analyzed. With more data in play, the individual might be able to make more creative associations – to see things others don’t.
One of the researchers is quoted as saying “We tend to think of psychiatric diseases s negative, as destructive. But we can see that some traits or components of psychiatric disease may be useful.”
Accommodating mental disabilities in the workplace can require some creativity and a willingness to suspend the rules about the way we’ve always done things. So often the characteristics of the condition affect how people do their work, the environment, attendance, work hours, behavior, and social skills. And an employer might be able to defend a decision not to hire – or to discharge – an individual who doesn’t comply with clearly communicated expectations. But consider whether making accommodations might not open your organization up to some amazing talent. Sit down with the individual and talk about how the company might be able to work with him or her to get the work done.
I joined Rotary about a year ago and it has far exceeded my expectations. My chapter (Jayhawk Breakfast in Lawrence) is filled with interesting fun people, we get to start our day looking out over the Alvamar golf course and the programs have always been good, sometimes fascinating. They’ve certainly helped me get acquainted with the activities and resources of my community. Thanks to Peter Steimle of Sedona Staffing for inviting me to a meeting.
As a new member I learned the Rotary Four-Way Test – of the things we think say or do
1) Is it the TRUTH
2) Is it FAIR to all concerned?
3) Will it build GOODWILL and BETTER FRIENDSHIPS?
4) Will it be BENEFICIAL to all concerned?
In general, this test really appealed to me, but I confess I rarely consciously focused on it when making decisions or giving advice in my business. Then I read an article in the January 2010 Rotarian called “Downsize with Dignity” by Mindy Charski. Mindy shares some excellent thoughts about applying the Four-Way Test in a layoff situation. She quotes Rotarian Herbert J. Taylor, author of the Four-Way test in 1932, who credits it with turning around the fortunes of his company paraphrasing, when employers are truthful and fair, and strive to build goodwill and benefit everyone concerned they are almost certain to do the right thing.
At first blush, the test would not strictly apply in a mediation where a key component is self-determination. In other words it’s not the job of the mediator to decide if an outcome is fair, rather the question is whether the parties agree. However, the more I think about it, the test could be useful for mediators. Stay tuned for the applicability of the Four-Way Test in mediation.
It strikes me that many workplaces have a lot in common with the healthcare system. If we’d only spend a little bit more money upfront on training supervisors, or conflict resolution (wellness, preventative medicine) we could spend SO MUCH LESS on litigation (surgery, hospitalization) and dramatically reduce loss of productivity due to unhappiness, conflict and miscommunication (pain and suffering). But it’s hard to dislodge those dollars you don’t absolutely have to spend. Even when you understand that winning an employment discrimination or retaliation lawsuit on summary judgment can cost $50,000 to $100,000.
So what can employers do without spending much money that can have dramatic cost-reduction effects? A few thoughts;
- Do a better job of hiring. Every time there’s a job opening figure out what the person REALLY needs to do and be able to do and hire someone with those qualifications. Pay attention to why people didn’t succeed in the job or left and don’t repeat the same mistakes. Do background screening. Effect? Reduced turnover (try quantifying this if you haven’t). More productive employees.
- Don’t tolerate ignore “jerks”. Every workplace has those people who are bullies or just take up more time than anyone else. They simply aren’t worth it. Deal with unacceptable behavior directly when it happens and fire them when their value is outweighed by the trouble they cause. Effect? Happier more productive coworkers. Reduced likelihood of litigation by the jerk or those affected by his/her behavior
- Develop a conflict resolution program. This doesn’t have to be elaborate or expensive but find a way to allow employees to air their grievances before they turn into chronic problems. The earlier in the life of a dispute it’s addressed, the less there is to deal with. Effect? Employees aren’t wasting work time harboring grudges, watching what “she” does next. Avoid litigation when little problems grow into big ones. From a lawyer’s perspective, the more opportunity an employee has to complain the less credible he/she is when bringing a hostile environment claim about conduct that “always” happened.
- Listen to employees. The old time suggestion box was a really good idea. Not only do your workers actually have some really good ideas about how the place could be run more efficiently, they’ll be happier knowing they are valued. Effect? Some really good ideas and more productive employees.
- Train supervisors on employment laws. My soapbox for years has been this: how can we expect people promoted into management positions to comply with laws they don’t even know about. It’s not just commonsense to understand the obligations under the Americans With Disabilities Act or the Family Medical Leave Act. Yet the consequences or an illegal – even if well meaning – comment can be enormous. Effect? Improved compliance and reduced risk of litigation.
Thanks to George Lenard, an employment lawyer with Harris Dowell Fisher & Harris, L.C. in Chesterfield, Missouri and Owner-Editor of George’s Employment Blawg, http://www.employmentblawg.com/, I had the opportunity to co-present at the OnRec/Kennedy Recruiting Conference in Chicago yesterday. Title was “Employment Discrimination – Tough Questions Recruiters May Not Be Prepared To Answer”. George and I had a lot of fun, using mock interviews that led to depositions – the source of those tough questions – to illustrate problem areas we’ve seen time and time again when defending discriminatory failure to hire lawsuits. (Aside: Thanks to my friends and family for contributing to the role-playing: Stan Davis, Dylan Brooks, Claire Hardin, Cecil & Margie Edgar, Jeff & Sammie Messick and Michael Goss! You’re wonderful!)
I was reminded after spending time at the conference, rubbing shoulders with hundreds of in-house and outside recruiters and hiring managers, listening to program topics and surveying the vast array of software available to help with recruiting and hiring how incredibly difficult it is to make good hiring decisions and how much people are searching for objectivity. It certainly doesn’t seem that moving out of the analog days of paper resumes painstakingly reviewed by humans into the era of technology would make the decisions any easier. Without a doubt, some tasks are aided by technology, for example, on-line applications that can be sorted and searched and the vastly greater audience that can be reached than the print ad days. However, the vast amount of data available can just be overwhelming especially with the increasing involvement of LinkedIn and other social networking sites.
Analog or tech savvy, best practices for avoiding a discriminatory failure to hire claim ALSO lead to better hiring decisions. It boils down to figuring out:
- what the job is, what skills/qualifications it takes to do it and which of those you’re willing to train for and which you expect the individual to have coming in;
- where are the qualified people and how best to reach them;
- what’s the selection criteria – substance and process – the logistics of sorting through applications and ranking them;
- who out of a bunch of excellent choices or the best of a not great selection to offer the job to.
We all know this. So why – time and again – do we start out down this road and then run out and offer the job to the one our gut tells us is the right “man” for the job (probably because it’s the applicant we’d most like to go out for coffee with)? For more information: “Using Smart Hiring Practices to Reduce Employer Liability”.
It has been an eye opening experience to work closely with parties transitioning from thinking about fighting to thinking about settling. The plaintiff turns to her lawyer with a hurt, puzzled look on her face: “I thought you believed in my case. You said we were going to tell the jury exactly what happened to me and they would find the employer guilty! Why are you pressuring me to settle? Is it because you just want the money?” Or the Vice President of Human Resources levels a stony glare at outside counsel: “We didn’t hire you to sell us out, we hired you to defend this case and bring in a defense verdict.” While every circumstance is unique, I’m seeing enough common misunderstandings to warrant these observations about what lawyers can do better.
- Explain the process. I mean really explain the process. Even if your client claims to be ultra super sophisticated about litigation – especially if your client claims to be ultra super sophisticated about litigation. Let them know what can be expected every step of the way in terms of timing, expenditure of resources and individual time investment. Consider using a written outline that you can go back to, even if this isn’t a client that requests this kind of information.
- Define your role. That is, tell the client what you’ll be doing is working hard to obtain the best possible solution to the problem that led to the litigation. If you’re any kind of litigator, you should be able to sell this. Because if you think about it, even for the most hard-nosed, see you in court advocate that really is what you do. If you get the case by pounding the table with your rhetoric and delivering a rousing closing argument without putting that into context, you lose an opportunity to set realistic expectations for the client. Because we all know that the vast majority of cases settle. Sometimes we’re in a position of recommending to the client that they accept an offer that’s hard for them to swallow. Other times we find they think it’s a sell out to consider settlement at all.
- Educate on possible outcomes. You’ve had clients with unrealistic expectations about what the lawsuit can do for them. Vindication! Millions of dollars! Give me my job back and get everybody who was mean to me fired! Humiliation! Change corporate culture! Make me feel better! Just leave us alone! In employment cases it’s mostly just about money and only in the settlement process is it possible to achieve some of these goals. For example, the company can achieve certainty that this angry plaintiff won’t apply for every job that’s posted, risking a retaliation or failure to hire claim over and over again. A plaintiff can extract a commitment from his former employer to do diversity training, or investigate a brewing problem.
- Set and periodically reassess goals. This process can identify unrealistic expectations and allow those to be sorted out before they turn into a conflict. It gives a format for discussing evidence that is developing. For example, “I know we discussed a goal of filing a motion for summary judgment on the retaliation claim, but now that I’ve seen the email discussing ….. that’s no longer realistic – it would just be a waste of your money.” Or “we did define one of your goals as reinstatement, but the company’s attorney has made it clear that won’t be an option. We have to look at other options.”
- Prepare the client for the multiple hats you’ll wear. During the course of the litigation you’ll be communicating confidentially with your client; developing a workable relationship with opposing counsel that doesn’t hurt your client; strategizing; evaluating risks; negotiating; presenting your case in the strongest light possible. In order to be effective, you use different styles for each of these roles. A client that doesn’t understand what you’re doing and how, for instance, having a cooperative relationship with opposing counsel can benefit him/her with extensions of time, limits on discovery fights, etc may think those friendly communications indicate a sell out. Delivering the closing argument in a mediation may polarize the parties and your own client would be better served with a focus on how to motivate the other side to settle. Because they’ll never agree with you that they are the spawn of Satan – but they might agree it would be a good idea to end the fight.
It’s Not Just the Economy! (Links to an article I wrote.)
Here’s a pattern: employers who are using the economy as an excuse to get rid of poor performers or trouble makers who they just haven’t done a good job managing. It’s a bad idea, despite the superficial appeal of allowing the employee to save face by being laid off instead of fired. It’s a bad idea mostly because it’s simply not true. But what’s a little white lie, you ask? Unfortunately it can translate to proof of pretext when defending a lawsuit by the employee. Simple illustration: long time employee, over 40, only female in department, is told she’s being laid off due to the elimination of her position for economic reasons. Four months later she learns that her administrative assistant has been promoted into her old position. Angry, she finds a lawyer and files a charge of age and sex discrimination. When the company tries to defend the termination decision with evidence of poor performance she responds with good performance evaluations and shows that the reason given – position elimination – wasn’t true and that the promotion of the assistant had been planned all along. Her case goes to the jury which may well infer that when the reason given was false, it was hiding the real motivation to get rid of the older female worker. And it may be that she really was a poor performer and that termination for performance reasons could have been supported if properly documented and communicated.
I’ve spoken on the issue of doing a post mortem on a wrongful discharge case a couple of times recently, to Human Resource Managers and to lawyers. Bottom line – hindsight is a really valuable tool And we rarely take the time to look back and really critique ourselves. When we do, there are patterns, common mistakes, opportunities, efficiencies that we can learn from. It’s not rocket science. We ought to do it every time. I have a short article on my website aimed at lawyers. My colleague on the Management Labor & Employment Roundtable, Jathan Janove (Ater, Wynne LLP – http://www.aterwynne.com/ ) did a piece for the February 2004 edition of HR Magazine entitled “It’s Not Over – Even When It’s Over” describing for human resources managers the “invaluable lessons by conducting an employment litigation post-mortem.”