Weeding Out the Passive-Aggressive, the

Liar and the Blamer

Alan Rupe (/authors/421-alan-rupe/articles)
January 25, 2008
B race yourself. Its a new year. The holidays are behind us, with not many festivities to look
forward to for a few months. The bills are coming in. Everyone has a cold and people are
cranky. Heres one more piece of news that will make your head hurt: Chances are pretty
good your company is going to get sued in 2008.
There are hundreds of ways an employer can get sued, and sooner or later, your ticket is
going to be punched. In 2006 alone, the EEOC received more than 27,000 charges of race
discrimination. Gender discrimination claims (including sexual harassment claims) represent
nearly one-third of all filings with the EEOC over the past 10 years.
Experts report that claims of family responsibility discrimination, in which workers allege
they are treated worse at work because of their responsibilities in caring for children, elderly
parents or sick relatives, have increased nearly 400 percent in the past decade. And
legislation is pending that, if passed, would expand the statute of limitations on wage claims,
prevent discrimination based on sexual orientation and gender, and prohibit employers from
using genetic information in employment discrimination.
But to me, the skyrocketing EEOC charges and employment litigation seem somehow out
of whack with reality. It is hard for me to believe all this discrimination is taking place. As
always, there are some exceptions to the rule. The recent case in which supervisors
allowed an electrical wire in the form of a noose to hang outside a workshop and let graffiti
espousing racial hatred remain in workshop bathrooms is one example of a company that
deserved everything it got (substantial punitive damages were awarded to the plaintiffs).
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Likewise, the woman with severe allergies who had a life-threatening reaction each time air
freshener was sprayed in her vicinity deserved to win against her employer, who insisted on
keeping the timed air-freshener units blasting several times a day.
Heres my point: Ive been defending employment discrimination cases for more than 30
years. I spend an enormous amount of time sitting in depositions and in courtrooms
listening to employees complain about their jobs. And after 30 years, there seem to be three
behaviors common to plaintiffs: They demonstrate passive-aggressive behavior; they
exaggerate or lie; or they refuse to accept personal responsibility for their own poor
performance. Sometimes plaintiffs have all three behaviors. Other plaintiffs may exhibit only
one. But the fact is these three behaviors cause trouble in the workplace:
The Passive-Aggressive. The American Psychiatric Association has dropped this
behavior pattern from the most recent Diagnostic and Statistical Manual of Mental
Disorders, but anyone who has supervised someone in the workplace knows the pattern
when they see it. The employee does not respond to the supervisors e-mail request for
information without several e-mail reminders. The employee who says perkily, "Can do!" to
a task request, but then performs the task poorly in an angry fashion. The employee who
accepts an assignment, but then stands in the coffee room and complains bitterly to co-
workers about his heavy load. You know it. Youve seen it.
The Exaggerator/Liar. Employees who exaggerate or outright lie are a huge problem.
Oftentimes, those folks create more uproar because of their lies than the actual problem
ever caused. Just ask Richard Nixon or Bill Clinton or Marion Jones. Lying and
exaggerating are common traits among plaintiffs. A talented fudger can turn a single inept
comment into a raging lawsuit. Heres an example:
A few years ago, I defended an employer against 16 plaintiffs who were alleging race
discrimination. Plaintiffs Exhibit 1 was a poster titled "Five Rules for Raising Monkeys."
Included among the rules were "monkeys should be fed or shot" and "the monkey
population should be kept below the maximum number the manager has time to feed."
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The significance of the "monkey poster" grew larger with each plaintiff who testified.
Every one of them had seen it. Every one knew without doubt that the poster was clearly a
racial slur against the African-American employees in that facility, and their emotional
damages were enormous.
On cross-examination, however, the jury learned the truth: the "monkey rules" were an
excerpt from an article written by Kenneth Blanchard (of One Minute Manager fame) and
published in the Harvard Business Review describing management tips for dealing with
employees who dumped problems and work on other employees desks. Race had nothing
to do with it. Plaintiffs Exhibit 1 disappeared from the courtroom and was not seen again.
Another example of an employee/plaintiff putting a spin on an innocuous action is the ex-
employee who, in order to show that her boss was arrogant and self-centered, claimed that
he had given a picture of himself to each member of the office staff at Christmas. Not quite.
The supervisor had given each employee an expensive sterling silver picture frame and, to
be cute, included in the frame a Xerox of one of his baby pictures. Now, that may have been
a silly thing to do, but it didnt show the arrogance and animus the employee hoped it would.
The Blamer: Im no statistician, but based on my experience in litigation, there is a direct
correlation between someone becoming a plaintiff and his or her failure to accept personal
responsibility for poor performance. Workers who blame co-workers, their supervisor, their
job assignment or their lack of training for their own poor performance often take the next
step of blaming a supervisor and claiming discrimination or retaliation instead of admitting
poor performance.
So whats an employer to do? Screening to weed out these behaviors is difficult. Job and
personal references are not always helpful. If the candidate was a problem at her previous
job, chances are good that the former employer only wants to put the sorry experience in
the past and may be afraid to be candid in her assessment of the applicants abilities. A
discrete inquiry as to the applicants education and previous jobs may, however, yield
substantial information to determine if an applicant has exaggerated his past. Anyone who
claims to have a degree they dont or fabricates previous job history will no doubt exhibit
these negative behaviors in the new workplace.
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A supervisors first assessment of a candidate is at the initial interview. Remember that
interviews are inherently stressful and it may be hard to read a nervous applicant, so
schedule plenty of time for each interview. Use standard questions, remembering to avoid
direct or indirect questions regarding age, sex, religion or other protected categories. But
dont settle for stock answers. Probe applicants with follow-up questions on how they would
handle a specific situation, what they would have said and what they would expect the next
step to be.
Identifying the "its not my fault" behaviors often takes some time and sometimes cannot
be accomplished in the initial interview. Watch for telltale signs in speech and behavior. My
experience in interviewing job candidates is almost identical to those frequent occasions
when I am picking a jury. A potential juror who refuses to accept responsibility for his own
actions will more likely than not side with a plaintiff who complains of discrimination when
counseled for performance problems. Likewise, a candidate who complains about a
previous employer may be telling you something about his inability to accept responsibility.
When interviewing, ask the prospective employee to identify some problems in his
previous workplace and the cause of the problems. His answer will go a long way in
identifying the candidates score on the personal responsibility scale. In jury selection, I find
that people with a high sense of personal responsibility make good jurors, and quizzing
prospective jurors about their accomplishments (whether keeping their checkbook error-free
or rebuilding a family room) all help identify individuals with a high sense of personal
responsibility. The same holds true for employees: the higher the employees score on the
personal responsibility scale, the less likely that litigation will occur.
Identifying the passive-aggressive types, sorting out the liars and exaggerators, and
avoiding the blamers will help employers reduce their litigation risk in 2008 and beyond.
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