Chuck Krugel Quoted Extensively in Employment Law & HR Article on Hewlett-Packard’s Business Blog

On her first day on the job, the IT project manager—let’s call her Ann—was three hours late.

In retrospect, it was a sign of nothing good to come. But Ann had a good story. Her boss, Shari (she requested that I withhold her last name), who was then program manager of a team of IT managers at a very large financial services firm, bought Ann’s tale of woe.

Two weeks into the new job saw no improvements. Ann was always late to work, snuck out early, and hadn’t completed a single assignment. Reasonably enough, Shari gave Ann a negative performance review.

That was on a Friday.

By Monday, things had gotten ugly. Ann had gone straight to the top of HR with a complaint of racial discrimination. An investigation ensued. The weeks turned into months, dragged out with a circus full of drama that included:

• Ann refusing remedial training or mentoring
• Ann eating a sandwich at a staff meeting
• Ann suffering either what her manager believes was a panic attack or what Ann claimed was an allergic reaction to mayonnaise
• Ann going on short-term disability for two months
• Ann threatening to add disability discrimination on top of her initial claim of racial discrimination

Enough was enough. “Cut her a deal,” Shari’s boss told her, while Ann was out on disability. By that time, Ann knew she didn’t have a leg to stand on. She wound up with two weeks’ severance pay and left.

The company got off easy.

There are nightmare employees such as Ann who cry wolf on the basis of anything: disability discrimination, racial discrimination, discrimination against heavy accents, you name it.

Much of it is the businesses’ own damn fault. We don’t like to be confrontational. We don’t criticize, because that’s aggressive and rude. Cultural mores breed managers who give glowing reviews of people whose work reeks but whom managers are terrified to review honestly. Such managers in turn breed nightmare employees who cling to an organization like leeches.

Overly nice managers are one issue. Another is how to deal with an employee who threatens legal action on (presumably) no grounds.

I chatted with a lawyer, a diversity counselor, and Shari, our IT manager. Here’s what they told me.

The inherited nightmare

Ann was a classic leech. Shari didn’t hire her; Ann was at the financial services company for a few years by the time Shari inherited her.

HR was just waiting for something like this to happen.

Ann’s previous managers were afraid of her, Shari says. They gave her rave reviews because they were afraid that a similar charge of discrimination would be lodged against them if they didn’t. Back when Shari called to ask other managers about Ann, before bringing her onto her team, they told her that Ann was “great.”

They were cowards. They passed the buck. But then, when HR interviewed the managers as they investigated Ann’s charge, those same managers said, “Yeah, we knew she’d give problems,” Shari says.

Managers have to tread carefully once a charge of discrimination is raised. Shari and her manager proceeded to walk a fine line, continuing to assign tasks to Ann, expecting her to fail. Then they mitigated the risk to business partners when she did fail, which she did “time and again,” with Shari documenting every last detail.

On being a good manager

After the negative review, Shari did everything she was supposed to, and the company immediately launched an investigation. Her actions are a good template for how to act in this situation:

1. Following Ann’s claim that she was being discriminated against, Shari immediately reported it to her manager, who called in HR.
2. Shari crafted a letter containing details of Ann’s poor performance and the company’s expectations: that Ann is expected to report to work at such and such a time, for example, along with details of the work expected from her.
3. Shari got on the phone and read the letter to Ann. She then e-mailed the letter to Ann, cc’ing HR and her manager.
4. Shari eventually offered Ann additional training and/or mentoring.

Shari was a good manager. But in her own words, in this situation she was “clueless.”

“I was thinking, ‘Here’s somebody who needs help. I’ll give it to her and everything will be hunky-dory,'” she says. “I thought, ‘We’ll just have a little performance conversation and we’ll be good to go.'”

That didn’t happen.

Stop acting like a victim

The turning point for Shari came when she switched tracks, from an initial posture of defending herself—i.e., poor me, I’ve been falsely accused of discrimination—to making an effort to help Ann succeed by offering training and mentoring. Ann refused the help on the basis that the problem wasn’t her lack of skills or training, but rather that, again, the poor review was a sign of discrimination. However, in spite of Ann’s insistence on being discriminated against, the wind was knocked out of her sails by the helpful attitude.

“It was an interesting human behavior experiment because when I switched tracks … she also shifted and began to demonstrate that she knew it was a losing battle,” Shari says.

The final straw came after the mayonnaise incident. Shortly after Ann returned from disability leave, senior management and HR gave Shari permission to cut a deal that included pay without work. But before Shari had a chance to call Ann to make the offer, Ann called and resigned. The company gave her two weeks’ severance pay and called it a day.

Two weeks severance pay. Think of that: It’s chump change. Compare it to the legal fees that would have resulted from defending against the initial charge.

Did the company even deserve to get off the hook? Shari obviously wasn’t practicing discrimination. But she came at the tail end of a string of chicken managers who treated Ann differently because of her race.

Regardless of her poor performance, Ann deserved better.

Now, onto a cry-wolf story that’s a little more cut and dried.

When job candidates cry wolf

Charles Krugel is a human resources attorney and counselor who works in labor and  employment law on behalf of management.

A securities trading company called in Krugel when they came across their own cry wolf situation. The company was using a headhunter/recruiter to find an IT professional to help maintain their proprietary trading platform.

The headhunter contacted Krugel’s client about one prospect whom the headhunter believed—initially, at any rate—was qualified, IT skills-wise. The problem was, the candidate—let’s use the pseudonym “Sonny”— had difficulty communicating in English due to a heavy accent.

Via e-mail, the recruiting company told the company two things: a) that they were concerned about the accent, and b) that Sonny might not be as qualified as his resume led them to believe.

Once Sonny learned of the concerns about his qualifications, he became contentious and wondered out loud if perhaps he was being discriminated against. Although nobody had mentioned the accent in their communications with Sonny, he himself brought it up, asking if it was an issue.

The company called in Krugel to resolve the issue. He investigated all communications  and determined there had been no illegal conduct whatsoever, he says. Ultimately, the issue was resolved when the business, via the recruiting company, told Sonny, directly and simply, that they didn’t believe he was qualified, end of conversation.

“Legally, we didn’t have to provide additional information,” Krugel notes. He also had his client inform Sonny that if he really believed he had a valid case of discrimination, then he could bring it to either his own attorney or the appropriate regulatory agency—in this case, the EEOC (Equal Employment Opportunity Commission).

“Most ‘crying wolf’ situations can be effectively handled if the employer, or the employer’s representative, in no uncertain terms, tells the employee or candidate that if the person believes that they were illegally discriminated against (or otherwise illegally treated) then the company will fully investigate the matter and will report their findings to the complainant,” Krugel says. “In the meantime, if the candidate or employee refuses to wait for the results of the internal investigation, then they may proceed in whatever way they see fit.”

When a wolf is really a wolf

Christopher (Kit) Tennis is a diversity specialist and co-founder of Sanchez, Tennis & Associates, an organizational development consulting firm that helps companies deal with issues that arise in multinational, multicultural organizations.

When I was looking for stories to shed light on the cry-wolf situation, Kit presented a situation that turned out to be an interesting hybrid of crying wolf and de facto race-based treatment. It’s similar to how Ann was treated, but with a bleaker (but deserved) outcome for the company.

Some years ago, Kit was asked to mediate a dispute between a manager at what he called “an IT giant” and an African-American programmer. The programmer—we’ll call him Roger—had 15 years on the job, but his performance had fallen “far out of expected” range in recent years, Kit says. A new manager had come in, looked at Roger’s output, and assigned him a marginal ranking.

Roger was shocked. He, like Ann, had received good or better performance ratings up to that point.

Prior bosses had watched Roger divert from the performance curve but were so uncomfortable giving negative feedback to an African American—this was in lily-white Colorado—that they kept his rating high and handed him off to another manager.

“With appropriate coaching all along, he might very well have stayed in the good performance range, but left without feedback, he strayed to the point that he was no longer a useful contributor,” Kit says.

Roger’s first reaction to the sudden downgrade was to charge racial discrimination. “He certainly knew that his bosses were uncomfortable around him, and his reaction was understandable in that light,” Kit says. “His new boss was also shocked at his reaction and dismayed to discover the mess he had inherited, once the employee raised the complaint.”

Kit and a colleague facilitated difficult, in-depth mediation sessions, but the employee couldn’t accept the outcome.

“It was clear that everybody was right and everybody was wrong,” Kit says. “In particular the manager who stepped up to the plate … was doing the right thing and in stepping into mediation was trying to step forward and find the right thing to do. But [Roger] was thoroughly blindsided. He knew he felt isolated from the get-go in his organization, but he believed that superior, even excellent, ratings over the previous years meant he was right on track.”

The end result was a cash settlement in which the company took some responsibility for managers who were cross-culturally incompetent. Roger left, still having difficulty accepting that his performance was now substandard. “No one was happy,” Kit says, but the silver lining would come to be increased training of managers for greater cross-cultural competency and comfort.

How to stay out of this cry-wolf mess to begin with

After all is said and done, are you sure your supposedly cry-wolf employee didn’t have a legitimate complaint? All employees have the right to be treated with the same respect and managed as rigorously as their peers. Pussyfooting around poor performance is just political correctness run amok.

The takeaway: Encourage overly nice IT managers to grow some cojones. Encourage them to foster an inclusive workplace that isn’t hobbled by fear of other cultures.

By this point, Kit says, we have some 60 or 70 years of research that proves that diverse teams are more innovative, better at solving problems and more creative if — and this is a big if — they’re well-managed.

His firm often works with an eight-state utility with headquarters in Minneapolis. Its internal diversity team came up with a tagline three years ago, and he cherishes it. To wit:

Diversity exists. Inclusion is our responsibility.

The first step to inclusion is to create interactions between team members that include everybody on the team. We’re talking about play, and/or situations where employees are encouraged to learn about each other’s families, interests, and hobbies.

It is far preferable to get people talking to each other, understanding each other, and getting over their fear of offending employees, instead of just sitting around and letting employees veer so far off-course that you can’t get them back.

Far better than waiting for an Ann or a Roger time bomb to explode.

See also:

• Would You Fire This Person?
• Ten Stupid Contractor Tricks and How to Avoid Them
• Prioritizing IT Hiring Criteria: The Changing Role of Tech Certifications
• What CIOs Need to Know about Intellectual Property
• 7 Things the CIO Needs to Know About Diversity in the Workforce