Doing the right thing. Bravery at what cost?

I am mad, and I am frustrated, and I’m trying to figure out what I can do about something. I hope you can help.

With growing frequency, I am noticing that there is a cancer crippling good people in worthy organizations. It’s been a sickness of weakening and character degradation for a very long time, however it is reaching epidemic proportions and I am very concerned.

At one time managers could just make better choices, and switch companies when we started to see the signs of this cancer in our leadership, or in our human resources offices. However when something reaches epidemic proportions we start to perceive we are closed in, feeling that our alternative choices are shrinking, and we decide we’ll tough it out and try to live with it in our organizations for a much longer period of time than we should. Not healthy for you, not good for the organization. Tolerance becomes perpetuating the existence of something that is just plain wrong.

This evil, insidious cancer is called the Fear of Litigation. Because of it, managers cannot lead with love instead of with fear. However, I ask you to honestly consider: Is this fear based in fact, or is it an excuse? Could it possibly be an unfounded fear? Worse, is it a loophole for shirking your greater responsibility in doing the right thing?

Theater_diversionary_wildeAs I strive to bring Managing with Aloha to different companies and varied industries it seems no one has immunity to this disease. I am finding that when a wrong exists in an organization, people actually are afraid to do the right thing unless their legal advisors first tell them it is safe to do so, and that they have not yet jeopardized any legal recourse if God forbid, the situation they are dealing with ends up on the legal battlefield. People who do deal with the situation at hand are forgetting about compassion and empathy, and that everyone involved can be a victim, destroying people as they “go through the process.” Even the so-called winners emerge as toughened, cynical people.

Folks, this stinks. More than ever before, I am convinced that to be a truly great manager requires considerable bravery, and the willingness to say, “I’ll take my chances, for I believe that if I do right by this person, they won’t sue me. Even if they do, I’ll be able to sleep at night.” Unfortunately it does take pure courage and bravery, for the higher up the organizational hierarchy you go, the less managers are feeling the company will stand behind them and foot the bill if they do get sued.

This dangerous cancer of twisted attitude and hesitancy with corrective action knows no bounds. While I primarily am seeing it in Human Resources offices, with HR managers telling me “my hands are tied” I continue to see it at all levels: From managers who are managers for the wrong reasons, continuing bad practices because “they can’t prove anything” to employees who keep good managers at bay with the overt threat of “bringing in the union or my lawyer.”
It is far too easy to put our personal preservation (and who can fault us for that?) ahead of doing the right thing for another person. When HR does engage and conduct an investigation, the investigation itself spirals out of control because those “providing evidence” are not questioned properly, and the very faulty assumption is made that “if we ask them for a written statement we’ll just get the facts.” Opinions in writing are not facts!

The dangerous reality seems to be that a witch hunt with one victim will be cheaper than if the focus turns and the entire company becomes the target.

I do feel that more often than not, the victims are those who potentially could be terrific managers if they felt they were better supported. Yes, there are many employees who are the victims too, however it seems to be their chances are better as the more sympathetic victims.

Managers and leaders are the ones those employees need to continually improve the workplace in this, and in so many other ways. As you all know, in my heart I do believe that managers matter, and that they are our hope for reinventing the very nature of work as we know it, so that the workplace is a place we all thrive. We need to support them, protect them, and stop giving in to fear.

Please understand that my rant here is NOT with the lawyers and the legal profession: it is with the managers and so-called leaders in business who are hiding behind the excuse of this fear of litigation. Employees and managers are being handled with kid gloves, and  are being kept at arms length because of the fear that they will say or do the wrong thing. Fear that many times is unfounded and unjustified. My call to action here is for more bravery and more guts when you are the manager involved in these situations.

I have to believe that the vast majority of lawyers entered the legal profession because they wanted to right things they feel are wrong. They have much better things to do than get involved in manager-manager, manager-employee, or employee-company squabbles because we cannot resolve our differences with each other like rational, honestly straight-forward talking, reasonable adults.

If we must get legal, we need to use the system to better benefit. This is my shout-out to those who may be looking for a place to put their philanthropy dollars to work:

How can we create a network of legal smarties who can help us protect and support managers who have the guts to do the right thing?

Let’s find a cure for this workplace cancer, and open the door wider to managing with the aloha of compassion and doing what is right.

While I know the cost presently is a very personal one, making this much more difficult, “Bravery at what cost?” is a short-sighted question. The better question we must be asking, is Tolerance of wrong at what cost?

Please, don’t be a manager claiming fear of litigation. Do the right thing.


  1. says

    I think the fear is real, even if it’s misguided (as it is). The problem lies in the way many organizations prize “not getting into trouble” and “not rocking the boat” over more positive values. When this happens, people respond by avoiding anything that might lead to a problem. I think that’s why so many HR departments have stopped trying to change things and gone on the defensive. It’s all about compliance nowadays — as if complying with a poor system is better than doing what’s right.
    You can’t really blame the managers. There have been so many layoffs in the past people are scared for their jobs. The blame should be directed at the top executives, who are trying to protect the fat salaries and pension deals many of them don’t deserve.

  2. says

    I hear you Adrian, and I do realize the fear is real for some, for that is where this post came from to start with; a real situation that I have been asked to advise in, and my frustration at its unfortunate recurrences, perhaps ruining the career of a potentially promising manager in the process. This is why I ask that the rest of us not perpetuate the ugliness of fear whenever possible, for in doing so, we are fulfilling our own prophecies of doom and gloom.
    Then there’s this question: When there is an investigation, what on earth happened to have things get that far? Were we that detached from working together as we should have been all along? I feel another plea for The Daily 5 Minutes coming on ”

  3. says

    Hi, Rosa. As a JD who chose not to practice law, I have to point out another aspect of the problem. Lawyers are trained to worry. You would not believe the outlandish cases that law students read as part of their professional training. Most law students enter law school in their early twenties, a time when they have yet to develop the life experience necessary to form their own opinions in the face of authoritative “worry” training. They accept the win-lose premise of the system, and they teach it to their clients, as they are drilled to do lest their own lawyering come under fire. It’s a win-lose system that is set up to perpetuate itself and spread. Thus the epidemic!
    I have seen both sides of the problem, as I was a manager before I was a lawyer, and I have worked with lawyers who have a solid grasp of right and wrong as well as a practical understanding of people’s emotional needs and motivations. These lawyers are absolute gems and should be treasured wherever you find them. Unfortunately, many lawyers are at fault (ironically through no real fault of their own) for terrifying their managers to the point of paralysis. Managers without legal training depend on their lawyers to tell them what they should and shouldn’t worry about, and unfortunately lawyers are trained to worry about everything. So you can see how the problem starts…
    I think you’re asking the definitive question because it goes right to the source of the problem: “How can we create a network of legal smarties who can help us protect and support managers who have the guts to do the right thing?” If this is something you’d like to work on directly, I’d love to get together with you on it. (I can also recommend several law professors at UH who might be interested in working on the problem.)
    The ultimate problem: law is taught as the theory of protecting people against worst-case scenarios rather than as the practice of helping people to create best-case scenarios. Hmmm… I think I just found my next blog topic…
    Anyway, I’m on board if you’d like to talk about the problem in more depth.
    – EM

  4. says

    What you need to know about your lawyer

    Does your corporate attorney make you feel like this? == Rosa Say posted a great article on Talking Story recently that highlights the ever-growing fear of litigation in the work place. I posted a comment to that article, but

  5. says

    Thank you EM, for taking the time to share your insights here, and for the follow-up post you did on your own blog, Win-Win Web.
    Your message of focusing on best-case scenarios versus worst-case scenarios has a multitude of applications in our overall “managerial attitude,” not just with the fear of litigation, and you’ve added to my coaching arsenal with the concept!
    While your insider’s view is very helpful, I must point out that I edited this post a few times before being satisfied with it, for my gaze is leveled on the managers concerned in a company who are capable of greater leadership in these situations, and who have the authority to effect change with the worst-case scenario attitude, not those in the legal profession.
    You made another point in your post worthy of mention here:
    “Remember, ultimately your attorney is motivated to represent your interests. He or she works for you, not vice versa. If your interests (or the interests of your company) include the well-being of all concerned parties, then your job is to ask your attorney’s advice on how to bring about the best possible result for everyone.”
    This nails it for me, for the intent of my post was that managers need to manage well, and hopefully, they will always have the most information at hand, not the attorney, and not even the employee who feels they may have been wronged. As managers we need to be diligent and stubborn about seeking to understand all the variables, and then, we need to pursue the course of action which will help everyone emerge most beneficially in the long run.
    We need to mālama our people — all of them through-out our organizations, protecting them, caring for them, honoring them, and loving them when they behave badly. Throughout it all, we must be the advocates for ho‘ohanohano, treating all with aloha, dignity and respect. It is this loss of dignity that the fear of litigation can cause which concerns me most of all. We worry more about possible litigation than about how the people concerned may feel, and how they potentially can be victimized by the process.
    Your article is wonderful EM, thank you, for a large part of the solution is in creating a better partnership with the legal advisors we have, and you’ve given us great advice in accepting our own responsibility to do so.
    [Ho‘ohana Community: the trackback links above will take you to EM’s post at Win-Win Web.]

  6. says

    Aloha, Rosa. Mahalo for your response to my comment. You wrote: “While your insider’s view is very helpful, I must point out that I edited this post a few times before being satisfied with it, for my gaze is leveled on the managers concerned in a company who are capable of greater leadership in these situations, and who have the authority to effect change with the worst-case scenario attitude, not those in the legal profession.”
    I just want you to know that I absolutely understand that, and in no way was my comment intended to detract from this important message! I think lawyers sometimes feed managers’ fears rather than assuaging them, and I only meant to comment on just how much managers can be up against when their own advisors are focused more on risk than on bravery or right action. It makes me that much more impressed with those managers who do make the shift from fear into right action, and it makes me that much more aware of the need that you suggested for a network of lawyers who will support those managers who have made this shift.
    If my comment was taken as an intent to move the focus from managers to lawyers, then I deeply and humbly apologize. That was not my intent. I tend to write comments more quickly and with less editing than I do my own posts, and your reply has taught me the folly of this practice! In the future, I will be more careful.
    Aloha & Mahalo,

  7. says

    Oh EM! No need to apologize at all — well understood, and both your comment and post were exceptional in helping us look at all sides of this, so a BIG thank you.
    I love the conversation,

  8. says

    I am one of the good people who chose to walk away as opposed to fight a wrongful perception. I have been and still am a leader of people. I chose to keep my honesty and integrity in tact as opposed to succumbing to the mentality of hiding behind the union and battling inappropriate misconceptions. I left a 100k a year job and chose another career path. It took three years to come back to my previous wage, but what price can you put on integrity? There are politicians and corrupt evaluators in every sector. When are we going to learn that some people have credibility and are honest? Unfortunately, if a good honest person as a leader lands, or is recruited to a corrupt environment, s/he can end up in a dilemma. I did such a thing and decided to leave my career after 18 years of success as a Principal. During my evaluation, no one asked me to explain my actions or clarify from my perspective. I was told to be at a meeting with representation. The evaluation was done by an unauthorized power hungry clerk who had a husband and a friend in positions of power. This corrupt and might I say unbalanced individual was my silent evaluator and she was believed without ever having me clarify anything. Yes, her day will come, but too bad for the kids and education because they lost a good and loyal leader. I have references to back my story and have left a legacy of good will and positive practices of building great learning cultures across the country. I have been a representative at the provincial level and served on many high level committees. Too bad this corruption caused me to choose to leave the profession. What will the people in power say? We have our reasons and it is a personnel matter so we can’t discuss it in public. The truth is that they are embarassed by their error, but litigation would be the first step if they ever admitted error, so they have to live with and validate their dirty little secret. I often wonder how some of the people involved can sleep at night. Check my references and check anyone who knows me and you will soon find out that I am speaking the truth and have paid the price financially. This being said, I will still tell you that you can’t put a price on honesty and integrity. I would take the same stand again tomorrow. I sleep well knowing the truth.