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‘Difficult’ employee? Don’t assume a disability

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in Discrimination and Harassment,FMLA Guidelines,HR Management,Human Resources

Every HR pro has to deal with especially difficult and argumentative employees now and then. You know the type: They do everything better than anyone else, in their humble opinion. Any criticism is taken very personally and may be accompanied by an angry response or generally unprofessional behavior.

You may believe the employee is having emotional problems—maybe even a diagnosable mental disorder. But don’t mention your suspicions.

Instead, concentrate on enforcing your workplace behavior rules. Focus on behavior, not cause. Until or unless the employee identifies himself as disabled and asks for an accommodation, treat him like any other employee. Otherwise, you risk being charged with regarding him as disabled, which gives the employee protections under the ADA or state disability-bias law.

Recent case: While working full-time as a maintenance worker, Charles Vainisi tended to a dying wife and then had to raise their teenage children. One of the boys developed a drug problem, causing Vainisi to miss more work. He took FMLA leave.

But Vainisi had a temper problem, too. He would shout at his supervisor when asked to work an extra shift. He argued with co-workers and was hard to get along with. Supervisors regularly reprimanded him. Finally, he retired early after being diagnosed with various stress-related disorders.

He sued for disability discrimination, arguing the employer treated him as if he were  disabled. But the court rejected that argument. It said the employer showed that it believed Vainisi was perfectly capable of functioning well by calling him to work extra shifts. (Vainisi v. Cincinnati Metropolitan Housing Authority, No. 1:07-CV-104, SD OH, 2009)

Final note: This employer did everything right. It granted Vainisi FMLA leave when he needed it, and didn’t react to his outbursts.

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