Manager should not ask employee about a possible disability

Can They Do That?

Your Money

June 26, 2005|By Carrie Mason-Draffen

Q. I manage a department with eight employees. The head of the company and I interviewed a likable young fellow whom we later hired to work for two managers, including myself. But early on, we determined he wouldn't be able to work in my area because of the other manager's crushing workload. However, four months later, after he and that supervisor lost a big account, I allowed him to come work for me full-time.

That decision ran counter to my better judgment, because while he worked for the other manager, co-workers were concerned about his inexperience, especially in following up with clients. I was advised on at least two occasions to let him go. But because he wasn't working directly for me, I felt he deserved a chance. I have now realized he needs a lot of help with his organizational skills and correspondence.

I have been his only ally; however, in telling him the truth, I think I may have offended him and possibly created an issue for the company.

When trying to gain some insight into how to help this young man, I told him he reminded me of my grandson. I also confided that my grandson took on too many tasks, just like him, because he was always trying to please people. As a result, my grandson was unable to remain focused and forgot many things. I asked the young man if he had ever been tested for attention deficit hyperactivity disorder, as my grandson has been.

He was offended and complained to the human resources director. She asked if I had indeed asked him this. I confirmed that I did, but I did so to try to help him.

Can our company get into any legal trouble for my question? The young man didn't want an apology. I guess he only wanted it known that he was offended.

A. Your instincts are right. Your question, though well-meaning, was inappropriate.

"Managers should never ask an employee about a medical condition," said employment attorney Robert Lipman of Lipman & Plesur in Jericho, N.Y.

Though the question itself might not be a problem, if you let him go, the inquiry could be interpreted as discriminatory, especially if his work performance isn't documented.

"I don't think that asking the one question in and of itself is unlawful," Lipman said. "It's what happens next that can make or break a case."

For example, "If the employee is fired - especially if there is not much documentation about his performance problems - he may allege that he was fired because you perceived him as having ADHD," Lipman said.

Although Lipman said it's hard to advise someone without knowing all the facts of the case, he suggested that you seek guidance from human resources or a private attorney on how to prevent such employment faux pas.

It's important for you to consider that advice, because under some state and city laws you could be personally sued for violating anti-discrimination statutes, Lipman said.

Carrie Mason-Draffen is a columnist for Newsday, a Tribune Publishing newspaper. E-mail her at yourmoney@ tribune.com.

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