United States: Radical Candor In The Workplace: How "Being Nice" To Employees May Place You In Legal Jeopardy

Last Updated: November 8 2017
Article by Richard R. Meneghello and Travis W. Vance

Is honesty really the best policy at the workplace? Some employers believe that a few little white lies might help them avoid uncomfortable situations and confrontations. It's common for some to spare an employee's feelings during performance reviews for fear of upsetting the employee or being accused of treating them differently from others. Many employers also believe it's a good policy to avoid candor when letting an employee go for performance deficiency reasons, opting instead to tell some story about a work slowdown or mysterious economic circumstances.

However, the failure to address work performance issues during employment or at the termination stage could have legal ramifications if the employee later challenges an employment decision and files a claim against the company. In order to address this problem, you should resolve to practice the act of radical candor.

What Is Radical Candor?

In her recent book, "Radical Candor: Be a Kick-A** Boss Without Losing Your Humanity," Kim Scott provides employers a detailed roadmap on how to be honest with employees while retaining their respect and loyalty. Scott, an entrepreneur and former executive at Google and Apple, saw firsthand how the lack of candor can lead to unpleasant conversations (or worse) when an employee must ultimately be terminated due to a performance issue about which they were never counseled.

For example, Scott tells the story of how she fired an employee who had been performing shoddy work for years, but no member of management had ever told him there was an issue. Management liked him; he was a nice guy, but performed horrible work. As you would imagine, he was shocked and felt betrayed when he was fired. "Why didn't anyone tell me about my work? I thought you liked me."

Scott knew she made a mistake with that employee. She should have been more honest with him. Not only did it upset him, her company's work product and efficiency suffered, particularly when the work done by the fired employee had to be "fixed" by another worker. As part of her reflection on this eye-opening incident, she made it her mission to counsel other employers and leaders on how to avoid her mistake.

If You Aren't Candid In Performance Reviews, You Could Land In Legal Hot Water

Many discrimination claims brought by employees in a protected class, such as age, sex, and disability, involve circumstances where the employee's protected status had nothing to do with their termination. However, the plaintiff claims they had never received a bad performance review and the employer always gave them a raise or, even worse, a performance bonus. And many times it's true.

If you don't give an employee a bad performance review, but instead provide generic feedback like "meets expectations" or "average," that employee will be shocked if you discipline or terminate them later due to poor work product or failure to perform. Reeling from this disappointment, there is a good chance the ex-employee will visit a lawyer or government agency to start the process of filing a legal claim against you, predictably rationalizing that age, gender, or other protected status must have been the real reason for the termination, given the consistently neutral or positive performance reviews they received. When it comes time to defend the case, you won't have any "bad" performance reviews to validate your claim that the termination was for legitimate and non-biased reasons. Ultimately your decision to be "nice" instead of honest turned out to be a very bad idea.

Hiding The Ball At Termination Could Be Costly

Another common scenario is trying to avoid the uncomfortable truth when the time comes to terminate a worker. Some employers will invent a reason such as "the business is slowing," while others believe that they don't need to provide any reason at all for the termination simply because the employee is "at will." It's not uncommon to hear stories of employers trying to do the right thing (or the nice thing) by telling an employee that they are being fired, but no reason will be given for the termination because of their at-will status.

There are several major problems with such an approach. First, the truth will always come out. Any plaintiffs' attorney worth their salt will examine the financial records of a company claiming that economic woes were the driving force behind a termination, and can often find a much rosier picture than the company had painted (along with evidence that the company hired new personnel to replace the departed employee).

Second, the law generally punishes an employer who lies to a worker about why they are being let go, even if the employer's heart was in the right place. A company on the defense will have an uphill climb to prove that the fabricated reason was not intended to shield some discriminatory reason. Finally, those employers that choose to avoid providing any reason for termination provide the perfect opportunity for the terminated worker to invent their own narrative. This is a prime motivator for ex-workers to seek out legal assistance, as they can't help but want to know the truth and will have a natural curiosity to explore further.

Show Radical Candor With Your Employees

Instead of trying to spare feelings, you should employ radical candor at these critical junctures. Here are five practical lessons you can glean from Kim Scott's advice:

  1. Be Critical. Not everyone does a great job, at least the first time. "Your job as a boss is to set and uphold a quality bar," Scott says. Being candid with employees improves work product and ensures clear communication without causing unwanted surprises like the employee fired by Scott. This will help you defeat a later claim that "no one ever said I wasn't doing well." Don't allow generational differences to keep you from being honest. Some may think baby boomers are more likely to accept and understand criticism, whereas millennials are perceived by some as more sensitive. Developing trust with employees will help make it less difficult to offer criticism, no matter their age.
  2. Be Timely. Check in with the employee on their performance early and often. You are building a business with high quality work. It's important to stress quality early in the employee's tenure with the company. You can even begin to set expectations in the employee's interview. If there are no issues, you can lengthen the period between performance reviews. However, don't wait until the employee's annual review to be critical. Your formal evaluations are meant to reinforce, not substitute for, the feedback you should give to your employees frequently about their work product.
  3. Be Consistent. As a supervisor, show no favorites. If you demonstrate to your entire team that you care but that you treat everyone fairly, they will be more likely to respond positively to your mission of promoting excellence in the workplace.
  4. Be Descriptive. At the time of termination, you should present your employee with a short one-page letter explaining your reasons for letting them go. It should contain a brief, to-the-point summary of your justification for termination, devoid of emotion. This letter begins your process of providing clear and consistent reasons for termination at every step along the way (unemployment claims, demand letters, lawsuits, etc.), and should be written in such a way as to serve as Exhibit A in any lawsuit defense you might need to muster.
  5. Be Compassionate. In her book, Scott cautions that effective honesty in the workplace is not just about candor. She urges employers to show compassion to employees as well, saying you can't have one without the other. If you exhibit both of these qualities during employee reviews, you will develop a stronger workforce and avoid awkward confrontations when poor performance requires the termination of an employee.

Be open with your employees. Listen to them. Don't try to convince them that your values are "right" and theirs are "wrong." One way to accomplish this goal is to remain open to new ideas and listen to how your employees feel and why they feel that way. If an employee hasn't done great work, Scott encourages you to allow employees to work on a project where they can shine. Put them in a position to succeed. This gives your employees an opportunity to show their potential. It also shows you care about their success with the company. If you show compassion, your employees will be more likely to accept criticism if and when it's necessary.  


Kim Scott's book offers practical and important advice for all employers. Be honest with your employees and show them compassion. It will not only help you grow a stronger business and develop better employees, but hopefully prevent future unanticipated legal claims. Your legal counsel can assist with documenting the steps you took to advise the employee on performance issues and in drafting an effective termination letter should you need to defend a future lawsuit.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Richard R. Meneghello
Travis W. Vance
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions