It’s tough these days to terminate anyone for any reason. But one of the most difficult reasons is the vague "firing for attitude." It’s not very easy to get one’s hands around and is a trigger for employment suits. Still, if an employee has a bad attitude, it does affect the workplace, from poor productivity to low morale.
Ann Kane Smith, a partner in the labor and employment department of Los Angeles-based Sheppard, Mullin, Richter & Hampton, advises on how to maneuver these tricky situations.
What should be the starting point for HR when looking to terminate for attitude?
You really have to go behind (the label of "bad attitude") to find out how that attitude is exhibited. When you look at the definition of attitude, it says that attitude really is an expression of opinion, of body language or of mannerisms that conveys some kind of communication.
So, it’s often in the eye of the beholder what constitutes attitude. You have to define that because an employer can be liable for making some subjective judgments about what’s being communicated by the employee that (others consider) inappropriate.
Once HR has determined what’s inappropriate, then what action should they take?
You need to see if the behavior is such that you have customer complaints about rudeness or lack of professionalism, or vulgarity, or lack of cooperation, lack of teamwork. You really have to investigate to find out what is causing someone to conclude that an employee has an attitude that’s negative for the business.
How hard is it to fire an employee for having a bad attitude?
It’s hard for employers to justify firing someone for attitude. If the employer is in the public sector, one of the problems that’s unique is the employer can’t really interfere with the free speech rights of an employee, because there are constitutional protections.
What are the implications if the attitude being displayed is a matter of speech?
If the attitude is a matter of speech rather than conduct, or a combination, the employer has to review it carefully to see what’s so offensive -- and to see if it’s the content of the speech that’s offensive rather than some kind of negative impact on the environment that’s causing a business loss. Then the company would have to tread very carefully, because (speech) is constitutionally protected.
What if the language is racial or sexist and you can prove it’s affecting other workers?
(There are) exceptions to free speech: obscene language, "fighting words," conduct that can constitute harassment or discriminatory behavior. This type of speech may not be legal speech. There may be a limit on the employee speech rights in that area. But when the attitude is expressed only in some kind of speech, you need to be very careful about investigating the words being spoken and the justification for any kind of discipline being imposed for that kind of speech.
If a lawsuit comes from firing for attitude, what type of suit is it usually?
If an employee is in a protected class, you can be guaranteed the lawsuit will include a claim that there was some kind of harassment based on race, ethnic origin, gender -- that the employer was reacting with some kind of punitive measures.
How can you guard against this?
Always look at consistency -- did you treat other people the same way for the same attitude? Did you apply progressive discipline?
Let’s talk about termination --where should HR begin?
If you want to discipline an employee with a bad attitude, look first at company work rules on treatment of customers and fellow employees. See if there’s anything in the work rules you can look to as a basis for discipline; see what you’ve expressly provided to give the employee as notice that this kind of behavior is unacceptable. Your work rules should cover those kinds of behaviors: you’re expected to behave courteously, treat customers and co-workers with respect, you’ll be evaluated on your ability to work as a team. Those kinds of work rules will be helpful in this kind of situation.
What should human resources document?
You should give the employee specific examples of complaints or observations you have of the behavior that’s causing a problem in the workplace. You should give the employee direction as to how to cure that behavior, and a period of time that the employee will be evaluated for the improvement in performance. You’ve got to tie the period of time the employee has to improve to your business needs. If you really need an immediate improvement, then put a shorter time frame on the opportunity to improve -- two weeks, or 30 days.
What if the behavior constitutes harassment?
If the behavior constitutes harassment, you should have a zero tolerance for it. Tell the employee that, and explain that if the behavior persists it may be cause for immediate termination. Like-wise for actions that cause any threats to safety of (the workplace).
What are some other examples?
If the behavior being displayed is tardiness or poor performance, you should articulate that that’s what you’re concerned about, not that it’s just the employee attitude. Address it as a specific performance problem. Spell it out -- what behavior is unacceptable and why. Look at what the impact is on the company if the behavior is causing problems with customers or productivity because of morale issues or poor performance.
What advice do you have regarding conducting the actual termination?
I’d stay away from the word "attitude" and again address the specific behavior for which the termination is occurring -- and its impact. After the termination, co-workers don’t necessarily need to know why an individual is terminated; that’s not generally disclosed by most employers unless there’s some business need for communicating the reasons.
How should one handle situations involving members of a protected class?
Before you terminate, look very carefully at whom it is complaining about the employee and what it is that everyone’s finding so offensive. Make sure there’s not some stereotypes or any bias in making the judgment about the employee’s "attitude." Are you applying a different standard to the individual because of the person’s protected class? (After that consideration), proceed as you would anyone else.
Are there any special concerns for dealing with union employees?
Union? It’s very difficult in a union context to discharge an employee for attitude. You have to establish that the conduct is detrimental to the interest of the employer, that it has affected productivity. And look at the progressive discipline of the bargaining agreement.
Finally, what if the employee is a fine employee but just difficult to work with, just an extremely unpleasant person? How do you handle that?
First, you should see who it is the employee’s not getting along with -- co-workers or the supervisor. If it’s the supervisor, you need to address it, because the supervisor is going to begin to evaluate the employee differently even though all of the objective data indicates the employee is producing well. So see if the employee is being subtly insubordinate to the supervisor, because that could lead to problems down the road. It may be a lack of skill of the supervisor in getting someone he or she doesn’t like to perform well.
And if it’s co-workers who are complaining?
The employee who’s a high producer, reliable and good for business, but co-workers just don’t like him or her --there’s no way to fix that problem because it’s a matter of opinion. It’s very hard to discipline anyone for an inability to associate with others, unless it’s a matter of teamwork, and the team members aren’t working cooperatively with each other. That’s the only way you can really (get at) that problem.
It’s been my experience that a long-service employee who exhibits new behavior as a bad attitude has underlying reasons that are either personal or medical that you may not be familiar with, or under most laws (you may not) inquire about. It may (be) the situation in which counseling or affording access to the Employee Assistance Plan (EAP) to assist that employee (will help).
How should human resources professionals approach that?
When an employee has a series of problems, (outline the problems for the employee), ask for any explanation for the behavior, ask if he or she needs any assistance, explain that (your conversation with him or her is) confidential. Just give the employee that opportunity.
Workforce, July 1998, Vol. 77, No. 7, pp. 82-84.