Tuesday, December 16, 2014

Addictions, last-chance agreements and the empathy gap

Accommodating an employee who claims to have an addiction is a challenging task—one employers sometimes make harder for themselves by passing moral judgment on the worker.

For example, I recently saw a last-chance agreement. The worker’s addiction caused disciplinable behavior and the employer (to meet its duty to accommodate the disease) put the employee on notice that if the employee was caught using again (among other conditions), to the curb she would go.

On first blush, this sounds reasonable enough. But think about it some more.

An addiction is a disease and this disease is characterized by relapses. So requiring no relapses is, in itself, discriminatory (but for the disease, there would be no relapse).

Maybe replace “addiction” in the example with some other medical condition and see for yourself. For example, if the worker required an accommodation because the worker broke her leg, would that come with a “no more broken legs or your ass is grass” condition? (Yes this is an imperfect analogy—I’m tired—but you get the point.)

When the employer’s lawyer was confronted with the discriminatory nature of this requirement, the lawyer blustered about being confident the agreement was not discriminatory and then immediately backed off and agreed to more (albeit not entirely) reasonable language.

So what are we make of the lawyer trying to foist a provision on a worker that the lawyer knew to be discriminatory?

After mulling it, my sense is that the lawyer was just out to jerk the worker around—to punish the worker for her disease. (If we make the charitable assumption the lawyer was competent, what other explanation is there?) At the root of that is a moral judgment: the worker was weak or lazy or irresponsible.

I see this kind of moralizing a lot.

For example, if you get tennis elbow from playing too much tennis, everyone understands and you get put on light duties. If you get tennis elbow from pulling cabling through wall studs or processing thousands of packages for 10 years, suddenly you are malingering and the whispering starts.

You see, privileged rich people really **get** tennis elbow. And sore backs from walking around museums (museum fatigue!). And eye strain from stamp collecting (philatelic vascular spasms!).

Not so much joint, back and eye problems from actual work (“it must all be in your lazy, irresponsible head”).

This empathy gap is a theme in Karen Messing’s new book Pain and prejudice: What science can learn about work from people who do it (from which I nicked the tennis and museum examples—thanks Karen!). In this book, Messing reflects on her career studying workplace health (particularly among women in low-paying jobs) and posits an empathy gap exists in the workplace.

To paraphrase, because of the (usually) different social classes from which workers and managers are drawn, their different day-to-day experiences, and manager’s desire to not be responsible for addressing the problems facing worker (which reflect embedded exploitation), managers are often profoundly unsympathetic (or even oblivious) to the problems of workers.

Basically, suck it up, buttercup.

The book covers a lot of other territory, but Messing’s description of her personal awakening to the empathy gap is one of the more compelling aspects of the book. Perhaps the lawyer who wrote the objectionable last-chance agreement might benefit from a copy?

-- Bob Barnetson

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