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You’re not Dr. Phil! Resist temptation to label underperformers’ problems

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in Discrimination and Harassment,Human Resources

We all use psychological lingo to describe behavior we find annoying or disturbing. But when such terms are used in the workplace, that armchair analysis can create needless legal headaches.

That’s why you and your supervisors should resist labeling a poorly performing employee’s problems as the result of a psychological malady.

Recent case: John was fired from his fundraising job at a community college for alleged poor performance. He claimed he was really fired in retaliation for complaining about disability discrimination and anti-gay bias.

John sued, alleging that before he was fired, his employer recommended he get counseling for “passive aggressive disorder.” His supervisor allegedly believed John had trouble getting along with his co-workers and subordinates.

John denied ever being diagnosed with such a condition and claimed that by labeling him as passive aggressive, the employer had discriminated against him on the basis of perceived disability in violation of the ADA and California’s Fair Employment and Housing Act (FEHA).

The court concluded that so-called passive-aggressive disorder is not a disability because it essentially is a condition characterized by not getting along with others. Employers don’t have to tolerate discord in the workplace. Because the condition isn’t a disability, he had no disability discrimination claim. (Gliha v. Butte-Glenn Community College, No. 2:12-CV-02781, ED CA, 2013)

Final note: John’s retaliation claims are still pending. Remember, employees can lose the discrimination claim and still win on retaliation for complaining in the first place.

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