Can a Potential Employee Negotiate Conditions of Criticism?

A woman sits at her desk in an office with her head down and hands over her ears.

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“Rex,” the hiring manager of a Midwest financial services firm, phoned to ask if I had a minute to discuss something that he had never before faced. “How do I respond to a job applicant who feels that, if hired, she has a right to dictate management’s manner of criticism or discipline? Mr. Beaver, have you ever heard of such a request?”

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Neither I nor any of the HR and employment law attorneys I ran this question by had, but all raised serious doubts about the underlying intention — if any — this job applicant had in mind. Her name is “Audrey,” age 22. She is about to graduate from a well-known Midwest university with a degree in finance.

Each HR and labor lawyer I spoke with raised the same question: “Is she not-so-secretly hoping to file a suit against your firm?”

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“Her school has been a consistent source of excellent employees, and on paper, she seems like a perfect fit. But I have to admit something just doesn’t seem right,” Rex said, adding that perhaps there was nothing to worry about, but if she agreed, “Would you chat with her and find out why she has these concerns?”

I agreed, and within minutes, I was on a video call with an intelligent, professionally dressed young lady whose attitude checked all the boxes.

Family Life Has a Huge Impact

“Oh, my gosh! Mr. Beaver! Two of my professors routinely hand out copies of your Kiplinger articles! What an honor to be speaking with you!”

“So, Audrey, tell me about yourself and what led to this very unique request? I have to be up-front. It makes you appear overly sensitive, so there must be a logical explanation. Can you help me understand what lies behind that request to limit the kinds of criticism a manager might make of you?”

That question opened a door into Audrey’s home life which, I would learn, had a profound impact on the way she was affected by hearing criticism — of anyone.

“When my parents would argue — usually over something Dad messed up — Mom didn’t address the issues. Rather, she berated him without mercy and used a sarcastic, horrible put-down tone of voice. But Dad loved Mom, and we always heard him say how much he adored her. But it was a one-way street, partly because of her cultural background. Growing up, seeing our father cry after one of Mom’s lectures, had a deep impact on me and my brother. We promised each other that we would never treat an employee, coworker or spouse that way. If Dad was upset over anything, he calmly set out the issues and asked for Mom’s help in resolving the matter. His tone of voice was always warm and respectful. He never put her down or was sarcastic.

“Dad died last year. Despite the way Mom treated him, in our last conversation before he died, he said, ‘I have been so blessed to be married to your mother.’ I cried for weeks afterwards, Mr. Beaver, learning a powerful lesson from my father about not carrying a grudge and being able to pardon those closest to us.”

Friends Warned That a Manager Would Open Old Wounds

Several of Audrey’s friends from school have been hired by this company, and all agree that the manager is competent, but “sounds like the way you describe your home life — hurtful and sarcastic when giving criticism.”

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They suggested that she look elsewhere for employment, as this guy is not going to change his management style. “But I need the job and was hoping to reach an agreement as to the manner of discipline,” she explained.

Analysis From a Labor Attorney

New York-based labor attorney “RJ” provided this analysis:

The question from a legal perspective boils down to: “Is she asking for an accommodation that she would otherwise be entitled to under the ADA (Americans with Disabilities Act) due to her family experiences?”
The entire area of emotional and psychological issues, as protected by the ADA, is an absolute, confusing swamp.
In essence, she is saying the equivalent of, “I have a physical disability and need to have that accommodated.”
But the two key questions are: Is she disabled? And is it reasonable to accommodate her in this regard? The answer to both questions is no.
From a legal perspective, she does not have a disability, and it is not reasonable to require someone in management to change his management style to accommodate this applicant who grew up in a disfavored family life.

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“I would tell Audrey to take the advice of her friends and look for a job elsewhere,” my colleague recommended. “Starting out in life after college, the last thing she needs is to tangle with lawyers and the ADA.”

Good, commonsense advice.

Dennis Beaver practices law in Bakersfield, Calif., and welcomes comments and questions from readers, which may be faxed to (661) 323-7993, or e-mailed to Lagombeaver1@gmail.com. And be sure to visit dennisbeaver.com.

Disclaimer

This article was written by and presents the views of our contributing adviser, not the Kiplinger editorial staff. You can check adviser records with the SEC or with FINRA.

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After attending Loyola University School of Law, H. Dennis Beaver joined California's Kern County District Attorney's Office, where he established a Consumer Fraud section. He is in the general practice of law and writes a syndicated newspaper column, You and the Law. Through his column, he offers readers in need of down-to-earth advice his help free of charge. "I know it sounds corny, but I just love to be able to use my education and experience to help, simply to help. When a reader contacts me, it is a gift."